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View Full Version : Santa Clara University Law Review Symposium 1/22/10 "Bearing Arms... After Heller"


wildhawker
01-23-2010, 3:57 PM
I thought I’d post my notes from yesterday’s symposium at Santa Clara University on “Bearing Arms: Policy, Policing & Incorporation After Heller” put on by the SCU Law Review. It was an excellent production and the Law Review should be commended on their hard work in assembling this symposium; I thank them for inviting us and look forward to attending future events.

Note: ~50 in attendance, mainly SCU students (who were generally very supportive of Heller/2A, and a few CGN cards were handed out, some very interested in going shooting :43:)

I’ll avoid to the best of my ability coloring the excerpts with my perceptions. While I made every attempt at quoting directly the comments made by the panelists, note that only those items in quotes should be viewed as direct quotes. All others are paraphrased as accurately as possible.

Panel 1: Don Kates, Stephen Halbrook, Nicholas Johnson, Dave Kopel
Panel 2: Jeffrey Shaman, William Merkel, Saul Cornell, Brannon Denning (not in attendance)

I apologize for any unclear formatting; any questions please post and I'll respond as best I can.

Kates
• Anti-gun policy is based on an outrageous lie: most shootings are not committed by felons or the mentally ill
• Armed victims significantly reduce the probability of harm
• Armed victim advantages over criminals:
o A) gunshots bring police
o B) even if shot in exchange of fire, 85% of shooting victims survive if timely medical care provided
• Women working in convenience stores (more dangerous than LEO occupation) where gun prohibited by management:
o many citable examples of rapes, murders, kidnappings; high probability of harm
• Women working in convenience stores where gun prohibited by management:
o women much more likely to survive encounter (examples given)
• [Kates] is an atheist, but only God can bring a world without guns. Humans can only disarms those that would submit to the disarmament. If you want a world without guns, get down on your knees and pray.

wildhawker
01-23-2010, 3:57 PM
Halbrook
• Supreme Court not interested in textualism late 19th – mid 20th century
• Sen. Hendricks (Indiana) @ Congressional debate re 14A: I don’t know what rights are Privileges or Immunities
o Was well aware of P or I rights, was part of Indiana state constitutional convention that ratified RKBA provision
• P or I rights understood to be those enumerated in BofR but possibly not procedural aspects
• Justice Stevens relies on Sem. Howard speech on 14A in other opinions yet disagreed with its use in Heller as inapplicable (Howard: speech delivered in the U.S. Senate, May 23, 1866 [CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).])

wildhawker
01-23-2010, 3:58 PM
Johnson
• Suspects SCOTUS to extend 2A against states in McDonald
• “Common Use”, category of regs
o Category 1: In common use
o Category 2: Nominally in common use, problems with taxonomy
o Category 3: Outside of common use
• Easy Fits (into Cat 1)
o handguns commonly used for self-defense
o common long guns
• Category 1
o Validation of self-defense invalidates sporting use
o NJ smart gun law and similar likely not survive 2A challenge
o LCIs, mag disconnects, microstamping likely not survive 2A challenge
o Ammo bans (outright) likely not survive 2A challenge
o Ammo bans on distance-measuring, explosive/incendiary etc probably stand
o These are suspect laws
• Category 2 – more difficult
o Taxonomy is complicated & convoluted (distorted)
o Assault weapons & other types of ammo restrictions in Cat 2
o Numerous subcats of “firearm”, creates logical problems for policy
o Distinctions in legislatures btw semi-suto & assault weapons are irrational and unsubstantiated, but politically-driven and “real” challenges to overcome
o Courts likely pressured to uphold bans
o Logical and informed debate on taxonomy not likely
• Miller
o 2 post-Miller circuit court opinions embellished Miller, only militia right to arms
o Embellishments of Heller post McDonald possible as in Miller via “common use” standard
o “Local community standard” filter possible as in 1A (porn, strip clubs, etc)
o Possible issues with not in common use due to pre-existing regs prior to 2A
o Courts that pay a modicum of respect to Heller must reject local community standard argument
o Enterprising courts and municipalities likely to defend bans, likely see states shift to new direction (“carving out” specific models in common use, banning others)
o NJ bans on hollow point ammo likely fails post-2A incorp as in AW ban
o How small a difference in taxonomy can sustain a category?
o All guns could be category to themselves
o “Common Use” categories protected, but not in common use likely to be attacked
o As in Ginsberg’s comment (today’s dissent = tomorrow’s majority) difficult to predict how Heller will apply out on issues as debate likely unreasonable going forward
• Category 3 – not addressed (MGs/NFA, etc)

wildhawker
01-23-2010, 3:58 PM
Kopel
• Post-Heller opinions likely to be based to some degree on 2 centuries of state supreme court decisions
• Standards of review is a tool developed by court, not Constitution itself
End panel 1

wildhawker
01-23-2010, 3:58 PM
Shaman
• [Heller] “Severe departure from precedent”
• Court may not incorporate Heller version of 2A, may revert to Militia 2A
• What does 2A/Heller prohibit?
o 2A not unlimited, some regs acceptable
o Dangerous and unusual, felons/mentally ill
• Scalia does not employ balancing, “Scalia test” would imply regs passing muster at time of 2A ratification
• Debatable that a majority would take an OPM ca 1791 in incorporation of 2A in McDonald
• “Haphazard to use UPM”
• As per recent circuit court, 922(k) acceptable reg
• “State courts uniformly apply a deferential rule of reasonableness”
o Acceptable regs: Felons/mentally ill, minors, non-citizens, no LOC, no serials, SBS, handguns, CCW, AW, locs serving liquor, loaded
• 2A protects only in service of militia, but who knows
• Lot more litigation to come

wildhawker
01-23-2010, 3:58 PM
Merkel
• SCOTUS does not respect the right if collective/community against risks engendered by distribution of arms
• “Heller was an act of fraud”
• “RKBA invariably connected to collective/militia…”
o Militia and military only, no mention of individual right prior to ratification of 2A
• “Bearing arms” collateral mentions 1775-1791
o 37 of 41 records used clearly in context of mil/militia
• Nathan Kozuskanich survey
o 202 of 210 hits used in collective right context
o 140 of 143 hits another survey used in collective context
• SCOTUS took constitutional language that originally meant militia duty and “warped” into “purpose of confrontation”
• “Standard Model” (Kates) ignores intellectual understanding
• “Danger of standing army discussed at 1st Cont. Congress”
• “Constitution loses its legitimacy after drafters/ratifiers pass on.”
• “Constitution does not suggest judicial review.”
• Scalia gets OPM wrong; OPM of 2A meant militia except by a few “semi-literates and idiosyncratics”
• [Heller] “…disingenuous reading of the Constitution.”
• “Why is judicial review appropriate?”, Heller fails to prove necessary.
• @ 14A: <2% Congress (5 of 244 members) agree 14A implies P or I includes B of R
• Bingham: no meaningful answer to “what are P or I?”
• “Heller not intellectually honest”
• Majority of Americans today would lean towards individual RKBA
• Better 9A argument for RKBA
• [Heller was] “deliberately misleading.”

wildhawker
01-23-2010, 3:59 PM
Cornell
• “Bizarro 2A world” (graphic of square earth, Scalia puppetmaster, etc) includes “Scalia intellectually honest”
• “Heller proves you are only constrained by the amount of time your clerks can dream up something for you.”
• On Alan Gura: “don’t know if he’s ill-informed or intellectually dishonest.”
• Deep divide as to Freedmen’s Bureau Act section 1
• [Kates et al] are “masterful politicians”.
• Much less clear that 14A was intended to incorp B of R
• Interesting to see what happens w/ Pomeroy’s Treatise
• No way to be an originalist & ignore preamble of 14A – SCOTUS: “Cheshire Cat Rule of Construction” (graphic)
• Founding Fathers pro-gun and pro-regulation, not pro-anti or anti-pro
• SCOTUS watching Disney Channel & shaping view of American history
• Scope of Permissible Regs: def handgun sales and open carry
• “McDonald’s Many Originalist Ironies”
• Incorporation of 2A may not really matter as Heller/McDonald “inconsistent and incoherent”
• No one believed 14A diminished police powers
• Notion that militia based 2A does not decline at ratification of 14A
• McDonald: ironic that it is offered as “defending civil rights” as Gura takes same argument as KKK in 18th century (US v. Avery)
• OPM @ Heller may ban pistols, open carry as per regs @ ca. 2A
• McDonald: Realist, CLS or Post-Modern moment?
End panel 2

wildhawker
01-23-2010, 3:59 PM
Q&A

Can 2A be incorporated but sidestep heller?

Shaman: Heller dissent (4) may incorp. 2A, then any of Heller 5 could move toward dissent and reintroduce militia 2A
Shaman: Originalism not rational as applied to RKBA/2A

johnny_22
01-23-2010, 4:05 PM
A panic at work forced me to cancel attending. Thank you for the summary. Surprised that there are those who cling to the militia mindset.

lomalinda
01-23-2010, 4:40 PM
"Surprised that there are those who cling to the militia mindset."

That's about the only thing they have to say in opposition to private citizens owning firearms in principle. Since they know that the militia question was largely settled by the SCOTUS decision in Heller, they now turn their attention to what is common, etc.

It is funny to hear the people who suggest the 2A would only allow us to avail ourselves of muskets, though. Given that argument, perhaps a cannon/cannonball setup would be OK with them?

dantodd
01-23-2010, 8:30 PM
Simply put Cornell is an idiot. Even ignoring all of the specious straw men in his argument look at these simple propositions:

• Incorporation of 2A may not really matter as Heller/McDonald “inconsistent and incoherent”
• Notion that militia based 2A does not decline at ratification of 14A

Heller and McDonald are mirror cases and anything but inconsistent and incoherent.

The interpretation of 2A as a collective vs. an individual right has nothing to do with 14A. That is the equivalent of arguing that the interpretation of 1A as protecting commercial vs. political speech does not decline after 4A. 14A does not speak a whit to the specific interpretations of due process or P/I it merely extends the proscription from interference to lesser governments.

yellowfin
01-23-2010, 10:25 PM
I wonder if Panel 2 takes the same farfetched, convoluted, and absurd approaches on any other Constitutionally enumerated rights, like the 1st Amendment was intended only for communicating with Martians speaking ancient Greek, Latin, or Coptic or that the 19th Amendment only applies to elections held on Saturday or on Leap Year day.

wildhawker
01-23-2010, 11:47 PM
Yellowfin, Merkel very well might.

bigstick61
01-24-2010, 12:35 AM
I just got the latest issue of Harvard Law Journal and it has two essays on Heller. They look interesting, so I'm going to see if they say anything novel or useful for future reference. Despite the compromises made, Heller definitely will have a lasting influence.

supra95tt
01-24-2010, 12:48 AM
Is this on YouTube ???? I'd love to watch it.

wildhawker
01-24-2010, 12:54 AM
Supra, this was not filmed; unsure if audio was recorded and if so, if it will be made public.

Bigstick61, remember that Heller had to achieve an individual right core holding; it's not a compromise, it's a first step.

SeanCasey
01-24-2010, 8:51 AM
Shaman: Originalism not rational as applied to RKBA/2A

So is the argument that originalism works for everything else but not the 2nd amendment? How the heck does that work??? You can't pick and choose. So now who is being intellectually dishonest?

PatriotnMore
01-24-2010, 9:17 AM
Once again, not one mention of the verbiage "Shall Not Be Infringed" I would suggest by the way it is completely ignored by both sides, it might as well be removed from the text.

hoffmang
01-24-2010, 11:44 AM
Once again, not one mention of the verbiage "Shall Not Be Infringed" I would suggest by the way it is completely ignored by both sides, it might as well be removed from the text.

Judge Silberman (http://en.wikipedia.org/wiki/Laurence_H._Silberman) who wrote the court of appeals case in Parker which became Heller argued subsequently on a PBS interview that "shall not be infringed" meant that the 2A probably didn't even need to be incorporated as it was not limited to Congress or any one government.

Not everyone ignores it.

-Gene

7x57
01-24-2010, 1:10 PM
Judge Silberman (http://en.wikipedia.org/wiki/Laurence_H._Silberman) who wrote the court of appeals case in Parker which became Heller argued subsequently on a PBS interview that "shall not be infringed" meant that the 2A probably didn't even need to be incorporated as it was not limited to Congress or any one government.


I never thought of that angle. I like the results, and love him for thinking those thoughts, but it has a weird logical status--given that selective incorporation is inherently irrational, how can one rationally judge how it interacts with a given proposition? Having 0 = 1 in hand, I believe I need not concern myself with other propositions because I can already prove all the ones I like and the negation of all the ones I dislike. Since no one appears to have intended or understood there to be a selective incorporation doctrine in either the eighteenth or nineteenth centuries, I don't know if I'd be on safe grounds concluding that eighteenth century language speaks to selective incorporation.

I would have guessed that the language would be interpreted to mean it requires a high degree of scrutiny, though that does have the problem of being something that so far as I know wasn't articulated in the eighteenth century either. But without consulting Blackstone I suspect the concept was already there, even if not by that name (it's hard to see how some similar concept can be avoided once one has judicial review and laws with different levels of authority), and as it isn't a case of 0 = 1 one should be able to reason.


Not everyone ignores it.


What a shame it would be inappropriate to send Judge Silberman a case of whatever he likes to drink on behalf of California gunnies. Maybe after he retires? :D

7x57

GrizzlyGuy
01-24-2010, 1:22 PM
So is the argument that originalism works for everything else but not the 2nd amendment? How the heck does that work??? You can't pick and choose. So now who is being intellectually dishonest?

Intellectual dishonesty seems to be a common trait for those opposed to 2A meaning what it says. This one is really off the wall: Heller, McDonald and Originalism (by Bret Boyce) (http://www.cardozolawreview.com/index.php?option=com_content&view=article&id=131:boyce20102&catid=20:firearmsinc&Itemid=20). Here's a taste, and it gets worse:

The most outrageous of Scalia’s many interpretive maneuvers in Heller is his treatment of the phrase “bear arms.” Contrary to Scalia’s assertion, the idiomatic meaning of that phrase is the natural meaning. To “bear arms” does not refer to simple transportation of weapons any more than to “bear witness” refers to the transportation of a witness. In everyday parlance, the term has a distinctly military connotation, which in the eighteenth century at least was its ordinary and normal meaning...

:rolleyes:

Lone_Gunman
01-24-2010, 3:08 PM
Also it is my understanding that in the language of the day "well regulated" meant "properly operating" think "regular" like is used in a fiber commercial. A modern translation could say " A properly operating militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. "

GearHead
01-24-2010, 8:16 PM
I am an SCU undergrad and really wanted to attend, unfortunately I had something pop up that prevented me from doing so. I am glad that this event was well-attended and hope that any Broncos who are curious about firearms, the shooting sports or the 2nd Amendment in general give me a PM.

yellowfin
01-24-2010, 8:23 PM
Something I haven't seen answered to date is what other examples of "collective rights" there are by which they validate the idea of the 2nd Amendment being one.

Mulay El Raisuli
01-25-2010, 12:02 PM
Intellectual dishonesty seems to be a common trait for those opposed to 2A meaning what it says. This one is really off the wall: Heller, McDonald and Originalism (by Bret Boyce) (http://www.cardozolawreview.com/index.php?option=com_content&view=article&id=131:boyce20102&catid=20:firearmsinc&Itemid=20). Here's a taste, and it gets worse:



:rolleyes:


As an example of "worse," Mr. Boyce offers an example of why the 14A only protected the 'equality' of keeping & bearing arms, NOT the Right to keep & bear, per se

(after describing all the bad done by the white militias in re disarming blacks:


These abuses were condemned in Congress, which passed, also over President Andrew Johnson’s veto, the Freedmen’s Bureau Act, which included a provision that

(quoting the Act itself)

"in every State [in the unreconstructed South] . . . full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.14 Stat. 173, 176–77 (1866)"

Mr. Boyce follows this with


Pomeroy’s constitutional treatise, published as the Fourteenth Amendment was nearing ratification, indicated that the Amendment would prevent a state that protected the right to bear arms under state constitutional law from prohibiting blacks from bearing arms. See JOHN NORTON POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES 152–53 (New York, Hurd and Houghton 1868).
None of this shows that the Fourteenth Amendment was specifically understood to incorporate the Second Amendment. The focus of discussion and legislation was on ending racial discrimination with respect to the right to bear arms, rather than absolute protection of the right. To the extent that states provided a common-law or statutory right to possess weapons for whatever legal purpose (including hunting or self-defense), they could not deny to blacks rights accorded to whites. To the extent that they regulated the right to bear arms as a civic right to participate in militia service, they could not do so in a racially discriminatory manner. Statements in Congress condemning the Black Codes, the Freedmen’s Bureau Act, and Pomeroy’s treatise are all consistent with an understanding of the Fourteenth Amendment as an antidiscrimination provision rather than an absolute protection of the [Page16] right to bear arms.

I find this to be utterly amazing. The words of Congress are actually fairly clear here; "...including the constitutional right to bear arms..." doesn't mean that some states have the right to keep & bear. It was a law passed by the Federal Congress. That clearly (a word that Mr. Boyce just doesn't understand) refers to a Right that exists in the FEDERAL Constitution.

This could be dismissed as merely wishful thinking of Mr. Boyce's part. But it gets even worse when he discuses the Slaughter-House cases.


The fact that Justice Miller in Slaughter-House construed the scope of the Privileges or Immunities Clause in a manner that was at odds with the historical understanding of its framers does not mean that it should now be overruled.

Actually, it does mean that. The case was wrongly decided the day it came down & its been wrong ever since. Its one of the very few things that legal scholars on all sides DO agree on. To argue that the logic behind a Ruling is wrong, but that the Ruling should stay intact is just so 'out there' that I must conclude that Mr. Boyce doesn't engage in wishful thinking so much as he's just nuts.


The Raisuli

wildhawker
01-25-2010, 12:08 PM
Actually, it does mean that. The case was wrongly decided the day it came down & its been wrong ever since. Its one of the very few things that legal scholars on all sides DO agree on.

The Raisuli

Interestingly, to a question in the Q&A session of the first panel regarding the "internal dispute" related to DP vs. PorI incorporation, Mr. Halbrook actually argued that only academics and pundits view S-H as bad law, and that he does not see any indication the Court views it as such.

dantodd
01-25-2010, 12:40 PM
Interestingly, to a question in the Q&A session of the first panel regarding the "internal dispute" related to DP vs. PorI incorporation, Mr. Halbrook actually argued that only academics and pundits view S-H as bad law, and that he does not see any indication the Court views it as such.

It is a bit stunning to suggest that DP v. P/I is only of interest to academics and pundits. There are a number of civil rights advocates who are not necessarily academics who are greatly interested in P/I.

I will definitely agree that DP is "adequate" justification to incorporate the Second Amendment and if one is interested solely in gun rights it is a shorter fence to swing for than P/I.

However; the RIGHT thing is P/I (or direct which won't happen) incorporation. Gura is a man known for doing what it RIGHT not what is politically expedient or what is seen as attainable.

Having listened to the NRA's daily podcasts; Cam & Company and The Daily News.it is clear that they are largely a conservative organization with an agenda that reaches somewhat beyond 2A policy. I am not completely convinced that the NRA would rather pursue DP incorporation because they think it is simply easier. It is likely they are afraid of some of the consequences of P/I incorporation outside of 2A politics.

Gura's case is clearly written such that failing to meet the demands of P/I incorporation and a complete overturning of Slaughter Houses DP is still available to the justices. If the winning run is on 3rd and a missed homerun still brings it in why not swing for the fences? The Second amendment will be incorporated the only question is by what means.

Finally; from the perspective of a changing court P/I incorporation is much safer than DP incorporation. It would be much easier for an anti-gun court to later overturn McDonald if the opinion is based on DP as the overturning of the case wouldn't damage DP incorporation enjoyed by other parts of the BoR. However; if we get P/I incorporation and any future incorporated rights are argued on the back of McDonald it will be much more difficult for the court to later overturn McDonald without upsetting an apple cart whose contents an anti-gun court is likely to want left undisturbed.

wildhawker
01-25-2010, 12:44 PM
I do agree with your assessment and commentary.

In all fairness, Halbrook did also say that there were many good and compelling reasons to reinvigorate P or I.

dantodd
01-25-2010, 12:50 PM
In all fairness, Halbrook did also say that there were many good and compelling reasons to reinvigorate P or I.

I think changing the world view from "gun rights" to "civil rights concerning 2A" would greatly improve the ability of some folks to grok why P/I is important here.

It is likely the last time that DP v. P/I will be argued in such a direct manner. This is really the last of the pre-14th amendment enumerated rights to be set before SCOTUS for incorporation. If they punt and choose selective incorporation P/I will only be argued for unenumerated rights which will be a much harder nut to crack.

Gura has set himself on an odyssey of inestimable importance to the future of Civil Rights in America. The fact that we, as 2A supporters are the vehicle should be humbling.

wildhawker
01-25-2010, 12:51 PM
I think changing the world view from "gun rights" to "civil rights concerning 2A" would greatly improve the ability of some folks to grok why P/I is important here.

It is likely the last time that DP v. P/I will be argued in such a direct manner. This is really the last of the pre-14th amendment enumerated rights to be set before SCOTUS for incorporation. If they punt and choose selective incorporation P/I will only be argued for unenumerated rights which will be a much harder nut to crack.

Gura has set himself on an odyssey of inestimable importance to the future of Civil Rights in America. The fact that we, as 2A supporters are the vehicle should be humbling.

Indeed.

7x57
01-25-2010, 12:54 PM
I will definitely agree that DP is "adequate" justification to incorporate the Second Amendment and if one is interested solely in gun rights it is a shorter fence to swing for than P/I.

However; the RIGHT thing is P/I (or direct which won't happen) incorporation. Gura is a man known for doing what it RIGHT not what is politically expedient or what is seen as attainable.

Having listened to the NRA's daily podcasts; Cam & Company and The Daily News.it is clear that they are largely a conservative organization with an agenda that reaches somewhat beyond 2A policy. I am not completely convinced that the NRA would rather pursue DP incorporation because they think it is simply easier. It is likely they are afraid of some of the consequences of P/I incorporation outside of 2A politics.


Do you have any idea how hypocritical those statements are, taken together? One must conclude that

"Having read Calguns, it is clear that plenty of Calgunners have an agenda that reaches somewhat beyond 2A policy."

To be clear: there is nothing wrong with that--I have said many times I am not a single-issue voter, and I do not ask others to be. However, plenty of people end up in the position of whining about someone else not being single-issue in the very same breath that they express delight that they have an opportunity to advance their agenda in more than one area. This is usually termed hypocrisy unless tact is necessary to preserve some alliance or the other. Fortunately I never figured out what 'tact' was, I just hear it's some kind of thing polite people use. :D

Also to be clear, that is intended specifically at individuals here, not at the NRA's problematic position (especially on hiring Clement, which cannot be excused as a difference in strategy and as Gene said should not be representing us in any capacity whatsoever). Contra what I said about individuals, I do ask the NRA to be single-issue (though I am not especially obsessed with this if there is a sufficiently close connection to the central focus on the RKBA--for example it is appropriate for the NRA to have a position on campaign finance because it directly affects their effectiveness in promoting the RKBA).

7x57

bwiese
01-25-2010, 12:54 PM
Having listened to the NRA's daily podcasts; Cam & Company and The Daily News.it is clear that they are largely a conservative organization with an agenda that reaches somewhat beyond 2A policy. I am not completely convinced that the NRA would rather pursue DP incorporation because they think it is simply easier. It is likely they are afraid of some of the consequences of P/I incorporation outside of 2A politics.

Well, certainly the marketing side does want to appeal to its base (fundraising).

Certain members of the Board are Thumpers (i.e., Ollie North, whom I generally love...) and may be afraid of matters possibly allowing same-sex marriage (or the irrational fear of "free housing as a right"). This subset needs to remember that the "R" in "NRA" is for "Rifle" - and not seventeen other concerns and oh-we-do-guns-too.

dantodd
01-25-2010, 1:00 PM
Do you have any idea how hypocritical those statements are, taken together? One must conclude that

"Having read Calguns, it is clear that plenty of Calgunners have an agenda that reaches somewhat beyond 2A policy."

To be clear: there is nothing wrong with that--I have said many times I am not a single-issue voter, and I do not ask others to be. However, plenty of people end up in the position of whining about someone else not being single-issue in the very same breath that they express delight that they have an opportunity to advance their agenda in more than one area. This is usually termed hypocrisy unless tact is necessary to preserve some alliance or the other. Fortunately I never figured out what 'tact' was, I just hear it's some kind of thing polite people use. :D

Also to be clear, that is intended specifically at individuals here, not at the NRA's problematic position (especially on hiring Clement, which cannot be excused as a difference in strategy and as Gene said should not be representing us in any capacity whatsoever). Contra what I said about individuals, I do ask the NRA to be single-issue (though I am not especially obsessed with this if there is a sufficiently close connection to the central focus on the RKBA--for example it is appropriate for the NRA to have a position on campaign finance because it directly affects their effectiveness in promoting the RKBA).

7x57

No; I do not see how my statement was hypocritical in any fashion.

I never said it was unacceptable for the NRA to have other issues and if you read my follow-up post I was pretty clear that I believe the Civil Rights aspects of McDonald will ultimately trump the fact that the vehicle was the second amendment.

I am also not particularly thrilled with being characterized as whining. I was merely pointing out that the NRA's other political stances may well have influenced their decision to try and submarine P/I. I also stated that P/I was an adequate resolution as far as 2A was concerned.

wildhawker
01-25-2010, 1:07 PM
You might be correct but for the fact that P or I can provide certain benefits to 2A that DP cannot; therefore, the interest in P or I as relates to guns should be taken into consideration. That said, you're not materially incorrect as I think the record reflects an interest of some (myself included) to leverage P or I (via McDonald) to advance or solidify other critical civil rights.

Do you have any idea how hypocritical those statements are, taken together? One must conclude that

"Having read Calguns, it is clear that plenty of Calgunners have an agenda that reaches somewhat beyond 2A policy."

To be clear: there is nothing wrong with that--I have said many times I am not a single-issue voter, and I do not ask others to be. However, plenty of people end up in the position of whining about someone else not being single-issue in the very same breath that they express delight that they have an opportunity to advance their agenda in more than one area. This is usually termed hypocrisy unless tact is necessary to preserve some alliance or the other. Fortunately I never figured out what 'tact' was, I just hear it's some kind of thing polite people use. :D

Also to be clear, that is intended specifically at individuals here, not at the NRA's problematic position (especially on hiring Clement, which cannot be excused as a difference in strategy and as Gene said should not be representing us in any capacity whatsoever). Contra what I said about individuals, I do ask the NRA to be single-issue (though I am not especially obsessed with this if there is a sufficiently close connection to the central focus on the RKBA--for example it is appropriate for the NRA to have a position on campaign finance because it directly affects their effectiveness in promoting the RKBA).

7x57

7x57
01-25-2010, 1:24 PM
You might be correct but for the fact that P or I can provide certain benefits to 2A that DP cannot; therefore, the interest in P or I as relates to guns should be taken into consideration.

Indeed, but if we're just asking the NRA to stick with realpolitik then one has to weigh the possible benefits relative to the possible drawbacks, weighted by the expected probability of them occurring. My suspicion is that such an analysis won't yield a large win solely for gun rights for P&I over DP, but I won't argue it strongly. I would argue more strongly that there are enough highly subjective variables to make reasonable people end up differing quite a bit. I can't rule out a simple difference in strategy and insight on P&I vs. DP.

What I find much more troublesome is the advisability of hiring Clement. (Now if part of the deal was to spend ten minutes doing public penance for his earlier positions...but it isn't.) Perhaps someone has some kind of angle, but color me dubious. It's rather vital, at least, that the NRA is not seen to support weak scrutiny or to appear to agree that scary scary machine guns are not a 2A issue (as opposed to avoiding touching it, as they should do).

Do people forget that the NRA slowly but eventually responds more or less to what the members demand? It's appropriate to apply the slaps and bennies as needed, and I'm happy to hear that there is some back-channel chit-chat about Fairfax's choices.

American and British command staff seem to have bitterly disagreed on many fundamental issues, but they did manage to win a world war in spite of it. I'm glad some of our more volatile members were not there to walk out whenever the command-level debates got nasty, or we'd never have gotten out of North Africa.

7x57

7x57
01-25-2010, 1:32 PM
That said, you're not materially incorrect as I think the record reflects an interest of some (myself included) to leverage P or I (via McDonald) to advance or solidify other critical civil rights.

Thanks for acknowledging it.

I generally avoid the subject here as it is neither germane to the board topic nor, frankly, do I find the level of discourse to be satisfying (very very much unlike that related to the RKBA). But sufficient insight into the arguments I do make would probably let you reverse-engineer why I think the case you mention is not defensible in an originalist context. But my experience, including with libertarians who are outraged when I say so, is that originalism does not go past the point where it supports one's preferences. I try not to fall down that hole, and thus I do not ask myself how P&I might be useful for this or that agenda. I find there to be absolutely no doubt about what the P&I was generally understood to do, and thus prefer to restore it as a matter of defense of the integrity of the law.

If the P&I is an inkblot, then there is no rule of law. I am content to wait until some other occasion to tell you that your exegesis of what constitutes a right in a textualist, originalist context is hopelessly mangled by your modernist dislike of what the full eighteenth century context really was. And then you can tell me I achieve too little clarity in too many words. :D

7x57