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DAVE KOPEL'S SECOND AMENDMENT NEWSLETTER, MARCH 4, 2010

Dave Kopel's Second Amendment Project is based at the Independence Institute, a free-market think tank in Golden, Colorado. http://www.independenceinstitute.org

Delivery of this newsletter comes courtesy of the Second Amendment Foundation, in Bellevue, Washington.
http://www.saf.org

Please visit Dave Kopel's website, containing articles on the Second Amendment and other freedom topics.
http://www.davekopel.org

Table of Contents

  1. New by Kopel: Law Review Articles: State Court Standards, 'Living Constitution,' Pennsylvania Quakers, Zimbabwe; Short Articles: South Africa's Disaster, Chicago; Audio: Privileges or Immunities, Miller's Meaning, IHEA, Pfaff interviews Dave; Bloggery: Armed and Overcoming, Clinton Connection to 'Birthers,' Gao Zisheng, Roscoe Pound, Interpol, Nemerov, Ginsberg.
  2. International: The Bahamas; Balkans; Finland; Mexico; Call for South African ban
  3. Industry: NSSF's Government Relations Blog; SHOT Show
  4. Anti-Gun Movement: Brady Center Leans on Starbucks; O'Reilly favors Crisis Gun-Grabs; Gun Owners Against Illegal Mayors; California Detective Calls for Shootings
  5. Media: CNN's Smuggling Network: Scoop or Spin?
  6. Federal: Guns in National Parks
  7. States: California Microstamping; Colorado Campus Concealed Carry; Delaware Public Housing; Tennessee Bowhunters
  8. Cases: Supreme Court to define 'Machinegun;' Shoot, Don't Brandish; Washington Supremes Apply 2nd via 14th; Seattle Parks Ban Pre-empted
  9. Research & Scholarship: Halbrook, Halbrook, Halbrook; Incidental Charges Defense; New Tendentious VPC Study;Mens Rea; 19th Century Incorporation; Time, place, and manner standard; Slaughter-House Three

New by Kopel

Law Review Articles

State Standards for the Right to Arms

David Kopel with Clayton Cramer
Santa Clara Law Review
2010
http://ssrn.com/abstract=1542544

"Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means."

The Right to Arms in the Living Constitution

Dave Kopel
Cardozo Law Review de Novo 99
2010
http://www.davekopel.com/2A/LawRev/Second-Amendment-in-the-Living-Constitution.pdf
PDF files require Adobe Acrobat Reader or similar software.

This article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Flawed Scholarship of Nathan Kozuskanich

Dave Kopel with Clayton Cramer
19 Widener Law Journal
2010
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1502925

Kopel and Cramer examine the historical underpinnings of historian Nathan Kozuskanich's claim that the right to arms in the 1776 Pennsylvania constitution only guaranteed a right to serve in the commonwealth's militia.

The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators.

Dave Kopel, Paul Gallant, and Joanne T. Eisen
114 Penn State Law Review No. 3, 2010, Forthcoming
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1437204

"Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This Article first examines the ATT, and observes that the ATT, if implemented as promised, would require dozens of additional arms embargoes, including embargoes on much of Africa. The Article then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The Article argues that the ATT would do nothing to remediate the conditions which have allowed so many arms to be acquired by human rights violators. The ATT would have no more effective force than the embargoes that are already imposed by the UN Security Council; therefore states, including China, which violate current Security Council embargoes could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators." What's up now is the near-final version.

Short Articles

South Africa's Deadly Disaster

Dave Kopel
America's 1st Freedom
March, 2010
http://www.davekopel.com/2A/Foreign/South-Africas-Deadly-Disaster.htm

"When not banning guns outright, the gun prohibition lobbies—both in the United States and abroad—promote gun owner licensing as a 'reasonable' and 'sensible' regulation. Yet, the terrible experience of South African gun owners shows how purportedly 'reasonable' licensing can be used to devastate a culture of responsible gun ownership."

The Next Supreme Decision: Showdown Over Chicago

Dave Kopel
America's 1st Freedom
February, 2019
http://www.davekopel.com/2A/Mags/next-supreme-decision.htm

"The NRA files a brief in the U.S. Supreme Court case of McDonald v. Chicago, making a powerful argument in defense of the Second Amendment."

Podcasts and Audio

The Privileges or Immunities Clause and What it Means for the Second Amendment

David Kopel with Ilya Shapiro
Dave Kopel's Second Amendment Podcast
February 16, 2010
http://audio.ivoices.org/mp3/iipodcast376.mp3

Kopel interviews the Cato Institute's Ilya Shapiro about his new law review article. 29 minutes.

What Miller Meant

David Kopel with Michael O'Shea
Dave Kopel's Second Amendment Podcast
February 16, 2010
http://audio.ivoices.org/mp3/iipodcast377.mp3

Kopel interviews Michael O'Shea about the history and multiple meanings of United States v. Miller. 65 minutes.

The International Hunter Education Association

David Kopel with Wayne East
Dave Kopel's Second Amendment Podcast
February 16, 2010
http://audio.ivoices.org/mp3/iipodcast378.mp3

Kopel interviews the International Hunter Education Association's Wayne East, about IHEA's good works in teaching safety and responsibility. 26 minutes.

David Kopel: Aiming for Liberty, The Future of Freedom and Self-Defense

Jim Pfaff with Dave Kopel
The Jim Pfaff Show
January 21, 2010
http://www.opiniontimes.com/podcast/20100121-JPS-Dave-Kopel.mp3

Jim Pfaff interviews Kopel about Aiming for Liberty, Dave's new book. 24 minutes.

Kopel's Bloggery

The Story of the Armed Community Organizers

David Kopel
The Volokh Conspiracy
February 22, 2010
http://volokh.com/2010/02/22/the-story-of-the-armed-community-organizers/

One of the reasons that as many figures in the Civil Rights movement of the 60's fared as well as they did is that a considerable number of them were armed with things besides faith and virtue.

"Birther" claim about Obama and the Bush National Guard Hoax: Fruit of the same Poisonous Tree?

David Kopel
The Volokh Conspiracy
February 9, 2010
http://volokh.com/2010/02/09/birther-claim-about-obama-and-the-bush-national-guard-hoax-fruit-of-the-same-poisonous-tree/

"So suggests John Avalon, in a Daily Beast column 'The Secret History of the Birthers.' He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr 'was also cited as a key source for CBS's discredited election year investigation into George W. Bush's National Guard records that led to Dan Rather's replacement after 24 years as the evening news anchor.'"

State Court Standards of Review for the Right to Arms

David Kopel
The Volokh Conspiracy
February 18, 2010
http://volokh.com/2010/02/09/birther-claim-about-obama-and-the-bush-national-guard-hoax-fruit-of-the-same-poisonous-tree/

"That's that title of a forthcoming article in a Santa Clara Law Review symposium, by Clayton Cramer and me. We examine, in detail, scores of important cases, from Bliss v. Commonwealth in 1822 up to the present. We explain which cases can provide useful guidance to modern courts which must interpret the Second Amendment (and which cases use an approach is plainly inapplicable to Second Amendment analysis, post–Heller)."

How the Right to Arms Saved the Non-violent Civil Rights Protesters

David Kopel
The Volokh Conspiracy
February 8, 2010
http://volokh.com/2010/02/08/how-the-right-to-arms-saved-the-non-violent-civil-rights-protesters/

"As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers."

Where is Gao Zisheng?

The Volokh Conspiracy
February 4, 2010
http://volokh.com/2010/02/04/where-is-gao-zisheng/

"There is no writ of habeas corpus in China, nor are there most of the other civil rights guarantees which are characteristic of a civilized nation with a free government. And so Gao Zisheng's writ of habeas corpus will not be issued by a Chinese court, but its moral equivalent can be issued by the free people of the world: commanding that the body of Gao Zisheng, in the Chinese government's custody detained, as it is said, together with the day and cause of his caption and detention, be safely brought forth."

Roscoe Pound on the Second Amendment

The Volokh Conspiracy
February 2, 2010
http://volokh.com/2010/02/02/roscoe-pound-on-the-second-amendment/

"As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution."

Interpol Realism

David Kopel
The Volokh Conspiracy
January 15, 2010
http://volokh.com/2010/01/15/interpol-realism/

"Over the past few weeks, there has been a lot of concern in some quarters about President Obama's Executive Order extending certain legal immunities to Interpol. These concerns are misplaced. I am currently writing a research paper on Interpol, which will cover the immunities, and many other issues."

Best unknown gun rights writer? Howard Nemerov

David Kopel
The Volokh Conspiracy
January 8, 2010
http://volokh.com/2010/01/08/best-unknown-gun-right-writer-howard-nemerov/

"The Examiner on-line newspapers have provided forum for a bevy of authors who write on Second Amendment and firearms policy issues. There are plenty of good writers among them, but my favorite is Howard Nemerov, who writes for the Austin Examiner. Howard´s columns are often data-rich (such as his latest piece, on the failures of police protection in Chicago). He is no mere commentator, but instead works hard to research the facts and advance the story." Mr. Nemerov's work can be found here: http://www.examiner.com/x-2879-Austin-Gun-Rights-Examiner

Justice Ginsburg: Supreme Court may Eventually Overrule Heller

David Kopel
The Volokh Conspiracy
December 20, 2009
http://volokh.com/2009/12/20/justice-ginsburg-supreme-court-may-eventually-overrule-heller/

"On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a 'future, wiser court.' As an example, she pointed to the dissent in District of Columbia v. Heller."

International

The Bahamas

Gun License Holders Requested to Renew or Face Possible Charges

Loretta Mackey
Bahama Islands Info
February 10, 2010
http://tinyurl.com/y8grwxp

"Please know that the deadline for renewal ended on 31st December, 2009. Furthermore, the 'grace' period of fourteen after the deadline has also expired. Therefore, gun license holders, should make a special effort to renew their licenses immediately. You are all reminded that if you have not renewed your licenses, you are now in 'possession of an unlicensed firearm/ammunitions' which are criminal charges."


The Balkans

Hunting surges in Southeast Europe

Phil Cain
Global Post

February 16, 2009
http://www.globalpost.com/dispatch/europe/100209/balkans-hunting-conservation

"After the fall of communism, hunting became an economic imperative in the Balkans, worrying conservationists."


Egypt

Firearms, and another Friday night in Cairo

Ingrid Wassmann
Dubai Business Journal

February 19, 2010
http://www.kippreport.com/2010/02/firearms-and-another-friday-night-in-cairo/

"Egyptians are confronting a violent crime wave with a decidedly American approach: buying guns and taking the law into their own hands."


Finland

Finns propose ban on handguns after shootings

Matti Huuhtanen
The Associated Press (Finland)

February 17, 2010
http://www.chicoer.com/news/national/ci_14417391

"A Finnish government commission on Wednesday proposed a ban on semiautomatic handguns after two school shootings in recent years left 20 people dead."


Mexico

Mexican Gun Control: The Bitter Irony

Howard O. Ness
The Las Cruces Sun (New Mexico)

February 11, 2010
http://www.lcsun-news.com/las_cruces-opinion/ci_14380633

"We read with horror about yet another mass slaughter in our Mexican border city, Juarez, on the last day of January when 18 young persons were killed in cold blood at a festive event. This story is now being repeated all over Mexico, particularly in the northern tier of states. There is a terrible irony about the current wave of deaths occurring from out-of-control shootings, many with fully automatic weapons. The principle irony is this. To my knowledge, Mexico has the toughest gun control laws in the Western Hemisphere."


South Africa

Gun Free SA Wants Gun Ownership Illegal

Regan Thaw
Eyewitness News (South Africa)

February 13, 2009
http://www.eyewitnessnews.co.za/articleprog.aspx?id=32456

An organization called Gun Free South Africa is urging the South African Government to expand aggressive new restrictions on civilian firearms ownership into a total ban.


Industry

Introducing 'Keane Insights,' NSSF's Government Relations Blog

Press Release
The National Shooting Sports Foundation

February 15, 2010
http://tinyurl.com/yb38f25

"NSSF has launched a new blog focusing on public policy, legislation, regulation and legal issues affecting the firearms industry. Titled 'Keane Insights' after its author, NSSF Senior Vice President and General Counsel Lawrence G. Keane, the blog is a direct response to member requests for more government-relations-based communications."

2010 SHOT Show

Boge Quinn
Guns Magazine's 'Web Blast'

January 21, 2010
http://www.gunblast.com/SHOT_Show_2010.htm

Here's coverage of the entirety of the Firearms Industry's 2010 SHOT show, held January 18th through the 21st in Las Vegas.


Anti-gun movement

Contact Starbucks And Protect The Right-To-Carry

Press Release
The National Rifle Association's Institute for Legislative Action

February 12, 2010
http://www.nraila.org/Legislation/Federal/Read.aspx?id=5399

The Brady Campaign is launching an effort to convince Starbucks to forbid concealed carry by licensees at its establishments.

NRA: Brady Campaign's Contradiction on Concealed Guns

Wayne LaPierre
Opposiing Views

November 16, 2009
http://www.opposingviews.com/i/nra-brady-campaign-s-contradiction-on-concealed-guns

Having previously acknowledged the obvious fact that civilian concealed carry has posed no problem, the Brady Campaign's effort to pressure Starbucks into forbidding it is a clear contradiction of their stated view.

'Conservative' Bill O'Reilly Supports Gun Confiscation in Emergencies

David Codrea
The Examiner

February 19,2010
http://tinyurl.com/yf35m7x

Citing the need of authorities to regain control of a city in crisis, Fox's Bill O'Reilly supported disarming the population in the aftermath of an upheaval. Codrea points out that at such a time the population would be in the most need of their arms.

Gun Owners Against Illegal Mayors

Informational Web Page
2010
http://www.stopillegalmayors.com/

This organization has done a thorough job of amassing considerable evidence that NYC Mayor Bloomberg's 'Mayors Against Illegal Guns' organization contains enough convicted or alleged felons to justify its investigation as a criminal conspiracy.

Gun Rights Advocates Target California Detective Following Facebook Posts

Joshua Rhett Miller
Fox News

February 15, 2010
http://www.foxnews.com/story/0,2933,585807,00.html

"Gun rights advocates have a California police detective in their crosshairs after he apparently posted comments on Facebook advocating that 'open carry' supporters should be shot."

Media

Smuggled Guns used in Cartel Hits

Ed Lavandera
CNN

February 18, 2010
http://edition.cnn.com/2010/CRIME/02/17/cartel.guns/

A network of straw purchasers has been illegally obtaining weapons in Texas for use by the Mexican drug cartels.

The One Thing That's Missing...

David Codrea
The War on Guns Blogspot

February 17, 2010
http://waronguns.blogspot.com/2010/02/one-thing-thats-missing.html

Codrea succinctly points out that the objectives of 'Lost and Stolen' laws will not be met unless criminals comply with the legislation by reporting themselves and surrendering the purloined weapons.

CNN's Lavandera Misrepresents Illegal 'Lost & Stolen' Gun Ordinances

Matthew Balan
Newsbusters

February 17, 2010
http://tinyurl.com/ygcb8rq

"CNN's Ed Lavandera [author of the article above] misrepresented 'lost and stolen' gun ordinances passed by municipalities in Pennsylvania as 'straw purchase ordinances' on Wednesday's American Morning, and hinted that gun rights supporters were somehow extreme."

Is CNN Report on "Legal Guns that Go Bad" Misleading?

Mark Berman
Opposing Views

February 17, 2010
http://www.opposingviews.com/i/is-cnn-report-on-legal-guns-that-go-bad-misleading

Here is a summary of Newsbusters' ongoing criticism of CNN's efforts to claim that a large, organized network of illegal gun traffickers is funneling large amounts of weapons from the U.S. into the wars of the Mexican drug cartels.

Federal

National 'Take a Gun Hiking' Day

Howard Nemerov
The Examiner

February 22, 2010
http://tinyurl.com/yf9md6j

Howard Nemerov offers his useful perspective and insights on the Federal law now allowing legal concealed carry, subject to state law, in the National Parks.

National Parks are Safer with Concealed Carry Law

Howard Nemerov
Pajamas Media

February 20, 2010
http://pajamasmedia.com/blog/national-parks-are-safer-with-right-to-carry-law/

"Thanks to a new federal law beginning February 22, people who can legally carry concealed handguns according to state law can also carry within national parks and forests in that state, too. While this may help protect visitors from the parks' burgeoning crime problem, the story of this law's journey through Congress provides a lesson in campaign contributions and anti-liberty special interests."

States

California

Concealed Weapons Permit Violations Rare, Police Say

C. D. Michel
California Gun laws

February 15, 2010
http://calgunlaws.com/index.php/california-law/83/858.html

"The lack of available micro-stamping technology has not deterred the Department of Justice from proceeding with promulgating regulations for the law's implementation. In other words, these proposed regulations are completely unnecessary at this time. It is on this basis, among others, that the NRA is objecting to the DOJ commencing with the rulemaking process on this matter." The text of the NRA's letter is here: http://tinyurl.com/y8gkh4b


Colorado

Colorado Senate News: Republicans back CSU Students in Struggle to Preserve On-Campus Concealed Carry Policy

ColoradoSenateNews.com
The Denver Daily News

February 12, 2010
http://www.thedenverdailynews.com/article.php?aID=7285

"A Republican lawmaker is outraged that Democrats killed a bill that would have declared that any firearms made and retained in Colorado are beyond the control of Congress."

CSU Approves Separate Concealed-weapons Policies for Two Campuses

Monte Whaley
The Denver Post

February 24, 2010
http://www.denverpost.com/search/ci_14458517

"Rocky Mountain Gun Owners has threatened to lead the legal charge against the gun policy, which bans people from carrying licensed concealed weapons on both campuses."


Delaware

House Bill 357 Introduced to Overturn Public Housing Gun Bans

Lee Williams
Caesar Rodney Institute Blog

February 18, 2010
http://criblog.wordpress.com/2010/02/18/house-bill-357-introduced-to-overturn-public-housing-gun-bans/

"A bill that would stop the state's public housing authorities from banning guns was introduced today, co-sponsored by a bipartisan group of more than two-dozen state lawmakers."


Maryland

Assault Weapons Ban Bill Dropped

Douglas Tallman
The Gazette (Gaithersburg, MD)

February 19, 2009
http://www.gazette.net/stories/02192010/polinew200653_32551.php

"The sponsor of a proposal to ban assault weapons withdrew his bill from the Maryland Senate this week, acknowledging the measure lacked enough support to get the legislation out of committee."


Tennessee

Bill Would OK Handguns while Bowhunting in Tenn.

The Associated Press(TN)
February 22, 2010
http://tinyurl.com/yzwghst

"Handgun permit holders in Tennessee would be able to carry their weapons while big game bowhunting under a measure approved by the House. The bill sponsored by House Democratic Caucus Chairman Mike Turner of Nashville passed 85-3 on Monday. The companion bill is waiting to be scheduled for a vote on the Senate floor."

Cases

Mandatory Minimums and Automatic Weapons: United States v. O'Brien and Burgess

Anna Christensen
SCOTUS blog

February 19, 2010
http://tinyurl.com/y8kmwfb

"In United States v. O'Brien and Burgess, the Court will once again enter the tangled field of sentencing law, this time to interpret 18 U.S.C. § 924(c), which criminalizes the use or carrying of a firearm in the commission of a crime of violence or drug trafficking and which has been the subject of several decisions since it was amended in 1998 to clarify that it extended to 'mere' possession of a firearm. The case involves the sentence enhancement for the use of a 'machinegun'..."

If You Brandish a Gun in Self-Defense in Kansas, You'd Best Shoot It

Eugene Volokh
The Volokh Conspiracy

February 12, 2010
http://volokh.com/2010/02/12/if-you-brandish-a-gun-in-self-defense-in-kansas-youd-best-shoot-it/

The Kansas State Supreme court has held, under its 2009 Hendrixdecision, that a man who merely brandished a firearm in what he believed was a dangerous situation was unable to use the self-defense defense he could have used had he fired the weapon.

State of Washington v. Christopher William Sieyes

Justice Richard B. Sanders
Supreme Court of the State of Washington

February 18, 2010
http://www.courts.wa.gov/opinions/pdf/821542.opn.pdf
PDF files require Adobe Acrobat Reader or similar software.

The Washington State Supreme Court held that the Second Amendment rights of law-abiding Americans are applicable to the states through the 14th Amendment.

Judge's Ruling Ends Seattle Parks Gun Ban

Erik Lacitis
The Seattle Times

February 12, 2010
http://seattletimes.nwsource.com/html/localnews/2011061469_parksgun13m.html

"The rule banning firearms in Seattle parks was tossed out Friday by King County Superior Court Judge Catherine Shaffer, who said the city cannot pre-empt state law."

Research & Scholarship

Securing Civil Rights

Stephen P. Halbrook
The Independent Institute

April, 2010
http://www.independent.org/store/book_detail.asp?bookID=85

Now with the urgency of the McDonald case, the Independent Institute is making copies of Securing Civil Rights available in a new, inexpensive, reader-friendly edition."

Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876

Stephen P. Halbrook
The National Rifle Association's Institute for Legislative Action

February, 2010
http://www.nraila.org/ActionCenter/GrassRootsActivism.aspx?id=96

"Now, you can donate to NRA-ILA and get the top source on the subject: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, by Stephen P. Halbrook. This hardcover, 230-page book has been a key source of primary materials for scholars and attorneys challenging the Chicago handgun ban. Now out of print, copies cost $75 or more online, but you can receive your copy, with no shipping charge, for a $25 donation to NRA-ILA."

Heller, the Second Amendment, and Reconstruction: Protecting All Freedmen or Only Militiamen?

Stephen P. Halbrook
Santa Clara Law Review

Forthcoming
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544924##

Halbrook responds to the District of Columbia's use of his scholarship in their Heller brief about the efforts of the Southern states to disarm former slaves in the aftermath of Emancipation. Halbrook further enlarges upon his explanation of his conclusion that on the Federal level the civil rights of the Freedmen very much included the right to keep and bear arms.

Bans on Discharging Firearms, Without a Self-Defense Exception

Eugene Volokh
The Volokh Conspiracy

February 12, 2010
http://volokh.com/2010/02/12/bans-on-discharging-firearms-without-a-self-defense-exception/

Volokh here discusses how a claim of self-defense can offer an explicit or implicit defense against other legal violations incidental to the action defended by a claim of self-defense.

A Shot at Mens Rea in Aiding and Abetting Illegal Firearms Possession Under 18 U.S.C. § 922(G)

Stephen R. Klein
Ave Maria Law Review

Vol. 7, No. 639, 2009
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1543547

This Note explains the current circuit split regarding aiding and abetting illegal firearm possession and argues that the split should be resolved legislatively by restricting § 922(g) charges via § 2(a). Possible judicial remedies are also discussed. Considerations include how the U.S. Supreme Court would resolve the current circuit split: the Court could either apply its reasoning in Staples v. United States 9 to § 922(g), or adopt its formulation of aiding and abetting in Nye & Nissen v. United States, or it could do both. Ultimately, the current disparity is best resolved by Congress, for it does not appear that aiding and abetting will ever find uniform judicial application within criminal law.

Target: Law Enforcement

Tom Diaz, VPC Senior Policy Analyst
The Violence Policy Center

December 4, 2009
http://tinyurl.com/yz7yzr2

More than one out of four assault weapon incidents involve police, says a study by the Violence Policy Center (VPC). Based on reports in the news of assault weapons incidents over two years the group said the study is a snapshot of the effect of Americas laissez- faire policy toward these deadly military-style weapons. The study found that the percentage of assault weapons incidents involving police rose significantly between the two periods studied: March 1, 2005 to February 28, 2006, and March 1, 2006 to February 28, 2007. Police were involved in 29 of 117 incidents (24.8 percent) in the first period and 35 of 118 incidents (29.7 percent) in the second period's increase of 20.7 percent. The study also found that shots were fired from assault weapons (other than police weapons) in three out of every four reported incidents involving police, and that gangs were reported to be involved in one out of five of the reported incidents involving assault weapons. At least one victim was killed in 86 out of 235 reported incidents (36.6 percent). A total of 115 deaths were reported for the 86 incidents.

Ducking the Bullet: District Of Columbia v. Heller and The Stevens Dissent

David T. Hardy
Cardozo Law Review de Novo 99

2010
http://www.cardozolawreview.com/content/denovo/HARDY_2010_61.pdf
PDF files require Adobe Acrobat Reader or similar software.

Hardy here offers a critique of Justice Steven's dissent in Heller.

The Potentially Expansive Reach of McDonald V. Chicago: Enabling the Privileges or Immunities Clause

Michael Anthony Lawrence
Cardozo Law Review de Novo 99

2010
http://www.cardozolawreview.com/content/denovo/LAWRENCE_2010_139.pdf
PDF files require Adobe Acrobat Reader or similar software.

Lewis makes a proposal that all restrictions on liberty be judged according to a "reasonable time, place, and manner" standard.

Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?

Gerard N. Magliocca
The Minnesota Law Review 94

2009
http://www.minnesotalawreview.org/sites/default/files/Magliocca_MLR.pdf
PDF files require Adobe Acrobat Reader or similar software.

Today, the conventional wisdom is that the Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading—including in Supreme Court opinions—was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Privileges, Immunities, and Substantive Due Process

Timothy Sandefur
NYU Journal of Law & Liberty Vol. 5, No. 1

2010
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1516667##

Slaughter-House's most egregious error was in nullifying the principle of "paramount national citizenship" which lay at the heart of the ideology of the 14th Amendment's advocates. Revitalizing the Privileges and Immunities clause should not lead to the abandonment of "substantive due process." This article provides the best collection of citations and sources in defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of "due process" substantively prohibited certain arbitrary acts by legislatures (e.g., giving A's property to B) even if the proper procedures were followed.

Citizen Gun Rights: Incorporating the Second Amendment through the Privileges or Immunities Clause

Kenneth A. Klukowski
New Mexico Law Review 39

November, 2009
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1290584

Klukowski argues that Slaughter-House should be affirmed, and that the Second Amendment can be protected against state/local infringement by the Privileges and Immunities clause, because the Amendment fits under Slaughter-House's restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of Second Amendment rights, since the former applies only to citizens. He goes on to warn that overrulingSlaughter-House could provide a future Court with too many opportunities to fabricate novel "rights" out of the Privileges and Immunities clause.

Keeping Pandora's Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States

Ilya Shapiro & Josh Blackman
Georgetown Journal of Law & Public Policy, vol. 8, number 1 Winter, 2010
http://www.cato.org/pubs/articles/ilya-shapiro-keeping-pandoras-box-sealed.pdf
PDF files require Adobe Acrobat Reader or similar software.

These authors discuss a hypothetical future reflecting the repeal of the Slaughter-House decision, which they argue at length would re-affirm the protections of the Constitution from abuses by the States as well as the Federal government.

 

This newsletter is compiled with help from Dr. Rob S. Rice. For more on this inferential, yet illative individual, see here:http://robricebooks.com. Samples of Dr. Rice's photography off that page might serve to explain his emphasis on writing as his means of livelihood.

Al Qaeda delenda est!

 

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