DAVE KOPEL'S SECOND AMENDMENT NEWSLETTER

Dave Kopel's Second Amendment Newsletter 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

To subscribe to this free e-mail newsletter, please send a request to:
kopelnewsletter@liberty.seanet.com

Table of Contents

1. New by Kopel: On the Election: A Great Night for the 2nd Amendment; State-by-State predictions and analysis; RKBA and the Dems; 'Extremists'; Kopel in the Courts: Amicus brief in Peruta v. San Diego; Articles: Review of Halbrook's new book; Obama's Anti-gun Summer; Bloggery: Kristallnacht, Puerto Rico seeks to Limit Range Time
2. International: Finnish Laws; No Israeli Hunting?; Kuwaiti Firearms Trade; Mexican Efforts Unavailing; Kiwis License Air Rifles; U.K. Foxhunt Ban to Remain for Now
3. Constitutional Amendments and More Election News: AZ, AR, KS, SC, and TN Amendments; Blue Dogs; NRA Outlay
4. States: Arizona Gun-Safety Ads; California Suit's Success; Florida open carry; Illinois Diversion of Funds; Maryland Gun Shop Protest; New Jersey Laws; NYC Long-Arms Permits; North Dakota hunting vote
5. Culture: Church honors Saint; RKBA a Civil Right?
6. Cases and Law: Wisconsin Open Carry; Colorado Campus Carry; Maryland Misdemeanants; McDonald v. Chicago arguments out; Volokh on Denying RKBA to Psychiatric Patients; Supreme Court Upholds Firearms Penalties
7. New Scholarship: Hunting Rights; Self Defense a Natural Right; Prudentialism in McDonald v. Chicago; Gun-a-Month Laws' Future; Will it Hurt Me in Court?; Judicial Restraint in McDonald
8. Resources: FIST Statistics; Rut Report; OL Weather

New by Kopel

On the Elections

The Second Amendment's Great Election Night

2010 Elections and The Second Amendment

Dave phones Cam Edwards in this YouTube Video to discuss the implications of the elections, for Colorado and beyond.

2d Amend. Results

Dave here provides a state-by-state scoring of the election results as known at the time of posting.

Gun Rights and the 2010 House Elections

Dave's predictions and assessments of the then-upcoming vote's effects in the U.S. House of Representatives are worth a look back in retrospective of the known results.

Gun Rights and the 2010 Senate Elections

Here's the companion piece to the above, discussing the potential implications of the vote in the U.S. Senate.

NRA Supports Pro-Gun Democrats, and Many Democrats Support the Second Amendment

"Democrats constitute an indispensible part of the pro-Second Amendment majority of the current Congress. Without the NRA's strong working relationship with so many Democrats, 2009-10 would have seen the enactment of destructive legislation for gun rights, rather than the constructive legislation which has become law."

Remember the imaginary "National Republican Association?"

Dave here makes the point that the National Rifle Association must necessarily work across party lines to fulfill the organization's primary goal of preserving the Right to Keep and Bear Arms in the United States.

Ronald Reagan: Extremist Collaborator

"When Ronald Reagan first ran for elective office, Governor of California in 1966, the opposition attempted to tar him as an extremist. Reagan was running against incumbent Governor Pat Brown, father of the 2010 Democratic California gubernatorial nominee Jerry Brown. Notwithstanding the extremist charges, Reagan won the election, and served two terms as California Governor, and then two terms of President of the United States. Let's take a look at that the use of the extremism issue in 1966 campaign."

Kopel in the Courts

Amicus Brief in Calif. Concealed Carry Case

"Peruta v. San Diego is one of several cases challenging sheriff misapplication of California's concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California's statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have 'good cause.' Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss. Along with Prof. John Eastman, I filed an amicus brief in the case on behalf of the Independence Institute, the Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

1. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
   
2. A "reasonable"regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
   
3. The state court cases approvingly cited in Heller expressly affirm the right to carry.
   
4. Twentieth century state court decisions affirm the general right to carry for lawful self-defense.
   
5. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms."

Articles

Stephen Halbrook: "Securing Civil Rights"

David Kopel
America's First Freedom
October, 2010
http://davekopel.org/2A/Mags/Halbrook-interview.htm

Kopel interviews Halbrook about Halbrook's career, and reviews his new book on the 14th Amendment.

Feeling Blue

David B. Kopel, Paul Gallant & Joanne D. Eisen
America's First Freedom
October 2010
http://davekopel.org/2A/Mags/feeling-blue.htmf

"Simply put, the U.N. threats to your Second Amendment rights are intensifying, and the Obama administration is making the problem worse. Now is no time to let down your guard against the U.N."

Kopel's Bloggery

"Nazism, Firearm Registration, and the Night of the Broken Glass"

"Reichskristallnacht was 72 years ago. Stephen Halbrook's 2009 article in the St. Thomas Law Review details the close connection between the disarmament of the German Jews and what came next."

Puerto Rico Law Limiting Use of Shooting Ranges

Puerto Rico's new laws, ostensibly to bring the territory into compliance with Heller, contain requirements for shooting ranges to collect data upon the type and quantity of their users' ammunition. Another law limits range users' target practice to five hundred rounds per year. Both are extravagantly unconstitutional.

International

Finland

Finland approves new Gun Control Act to further restrict firearms

The Finnish government has raised the age for the purchase of handguns, shortened the duration of licenses to own firearms, and required psychologists to inform the police if they believe their patients are unfit to own a firearm.

Israel

Wild Animals Can Relax as Hunting May Soon be Prohibited

"While fewer and fewer hunting licenses have been renewed each year for the past 10 years and no new licenses are granted at all, the sport could disappear entirely if a bill by the Environmental Protection Ministry passes into law."

Kuwait

Unlicensed guns on Sale at Friday Market

"Despite laws imposing strict restrictions on gun ownership in Kuwait, firearms are openly on sale to unlicensed buyers at the Friday market in Shuwaikh, where anyone with the money can get hold of a handgun or hunting rifle for as little as KD30." The amount is roughly $100 USD.

Mexico

U.S. Effort to Slow Flow of Guns into Mexico Failing

"A much-touted federal effort to keep U.S. firearms out of the Mexican drug wars is unwieldy, mismanaged and fraught with 'significant weaknesses' that could doom gun smuggling enforcement on the border to failure, a U.S. Justice Department inspector general's review concluded yesterday, says the Los Angeles Times. Federal Bureau of Alcohol, Tobacco, Firearms and Explosives agents focus only on small gun sales and do not share information with law enforcement officials on both sides of the border, the review said. An effort to trace U.S. guns in Mexico too often comes up short because of missing data and the lack of U.S. training for Mexican police, it found."

Vehicle Searches Yield Few Weapons at U.S.-Mexico Border

"Searches of vehicles crossing into Mexico are yielding few weapons in what U.S. officials concede is a frustrating effort to slow the flow of guns to violent Mexican cartels operating across the U.S. border."

New Zealand

"'These weapons have proven popular with violent criminals who have, in the past, been able to own and use them without having to undergo the rigorous background checks required for a firearms licence.' PCP air rifles have been used in two fatal shootings in this country, including the murder of Police Sergeant Don Wilkinson."

United Kingdom

Fox Hunting Ban Set to Stay as Repeal Campaign 'Falls off Political Agenda'

"The impact of the economic downturn has meant attempts to change the controversial law have become a low priority, the Countryside Alliance acknowledged. As the traditional start of the season gets under way today, the Alliance conceded it was keeping a low profile because it was foolhardy to make hunting a priority issue when country was just recovering from a recession"  

Constitutional Amendments and More Election News

Voters Say No to Hunting and Fishing Amendment (Arizona)

"Proposition 109 would have made hunting and fishing on par with freedom of religion, free speech and the right to bear arms. It also would have given the Legislature exclusive authority to regulate those activities, although it could delegate rule-making to the state Game and Fish Commission."

Arkansas Voters Approve Right to Hunt, Other Items

"Providing constitutional protection to the right to hunt and fish became an issue because Arkansas has approved an animal cruelty law that allows prosecutors to charge the offense as a felony. State Sen. Steve Faris, D-Malvern, was a key backer of the proposal."

Kansans Back Two Amendments

The voters of Kansas overwhelmingly approved a state constitutional amendment declaring a citizen's right to own guns for any lawful purpose.

SC Voters OK Right to Secret Ballot in Union Votes, Constitutional Right to Hunt and Fish

"Legislators who added the hunting and fishing measure had argued the amendment was needed in case gun control supporters eventually try to restrict the sports."

Tenn Voters Approve Constitutional Guarantee to Hunt, Fish

"Sponsors of the ballot initiative said they wanted the right to hunt and fish embedded in the constitution where government couldn't infringe upon it."

How Did the Election Impact the Second Amendment?

"Many Blue Dog Democrats who strongly supported gun rights went down to defeat, but the Brady lobby is wrong to state they scored any victories for gun control in the election."

NRA Spends $20 Million This Cycle

"'It's an enviable position for any group to be in," Cox said. "We have Republicans and Democrats fighting over who is more pro-gun and whose more pro-NRA. That's a great position for us to be in, and that's a great position for NRA members to be in.'"

States

Arizona

Why Has Phoenix Banned Gun Safety Ads?

A Phoenix Assistant City Attorney, Ted Mariscal, ordered a firm that had posted illuminated bus-shelter advertisements for a gun-safety program to remove them all. Mariscal when asked could not explain his criteria for removing the advertisements paid for by TrainMeAZ.com, a commercial joint-educational effort of the firearms industry in Arizona.

California

Gun Rights Groups Drop Lawsuit against Sacramento County Sheriff's Department

In its first full opinion of the 2010-11 term, the Supreme Court on September 15 upheld longer prison sentences for carrying or using a firearm while trafficking drugs. Justice Ginsburg authored the 8-0 opinion, which affirmed rulings by lower courts against defendants whose drug trafficking sentence received five additional years due to the presence of a firearm.. The cases came from the U.S. Court of Appeals for the Third Circuit in Philadelphia and the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Certain federal courts had said the additional five years could not be added onto related sentences for federal crimes. Newest Justice Elena Kagan did not take part in the case because she had represented the U.S. government at the court before becoming a justice.

"'Judicial restraint' and its counterpart 'judicial activism' are widely regarded as meaningless terms, useful primarily as rhetorical weapons with which to praise or condemn judicial decisions about which the speaker has strong feelings. The terms certainly are frequently used in that manner, but there may also be analytically distinct forms of judicial restraint to which different judges adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate 'at work,' so to speak, in an actual case. The Court's recent Second Amendment incorporation decision, McDonald v. Chicago, is an especially interesting example because strikingly different models of judicial restraint are adopted by subsets of the more conservative wing of the Court, and subtly different models are adopted by subsets of the more liberal wing. A close look at the opinions in the case suggests that each model has different strengths and weaknesses, but also that they are by no means created equal. Surprisingly, perhaps, the most radical sounding opinion in the case may on balance be the most restrained."

OL Weather