--------------------

In welcome news this morning, the Supreme Court agreed to hear arguments in the potentially far-reaching Second Amendment case of “McDonald vs. City of Chicago.” At issue is whether last year’s historic Heller vs. District of Columbia decision affirming the individual right to bear arms also applies to state law, a doctrine known as “incorporation.” The Court said it will hear the case this coming January or February.

But the case also presents opportunities to expand all civil liberties, not just Second Amendment rights. As Doug Kendall of the progressive think tank, the Constitutional Accountability Center, noted in their recent brief supporting McDonald:

“McDonald v. City of Chicago is about more than guns: it is about whether the Court will restore the precise constitutional text that requires states to honor the fundamental rights of all Americans.”

Background:

In the 2008 Heller decision, the Supreme Court unequivocally affirmed the civil right of citizens to keep loaded handguns “at the ready” in their homes. However, the ruling specifically said that their decision applied only to federal, not state law.

Writing for the majority in favor of Second Amendment rights, Justice Scalia said:

“It held that the Second Amendment protects an individual right to possess firearms and that the city’s [Washington, D.C.] total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”

The McDonald case has the potential to solidify the Heller ruling and, hopefully, strike down once and for all restrictive state or city ordinances that amount to total handgun bans, as well as laws that insist that handguns must be stored in a “nonfunctional” state, e.g. in a safe or with trigger locks in place. (Note: If you have kids around the house, use common sense about the relative risks of home invasion vs. curious young hands.)

All five of the justices who supported last year’s Heller decision are still serving, with the addition of Justice Sonya Sotomayor (recently appointed by President Obama) whom we expect to join with the majority in applying the Second Amendment rights and protections to the states.

Arbitrary and Capricious

Chicago’s handgun ban was instituted in early 80s during the anti-gun sentiment following the attempted assassination of Ronald Reagan. Local feelings about the law are mixed, but there is no evidence that the law’s intent of lowering violent crime has worked in any way. Chicago residents face up to a year in jail as well as fines for mere possession of a handgun.

However, like most gun prohibitions, the law has not been uniformly or equitably enforced, as was shown in 1994 when Illinois state senator Rickey Hendon, representing west Chicago, reported a handgun stolen from a burglary but was not prosecuted for owning it. This is clear evidence that enforcement of the ban is both “arbitrary and capricious” (see below). We suspect lawyers arguing the case will find more instances of inequity without having to look very hard.

Earlier this year, gun rights activists became especially concerned after another far-reaching gun control bill, The Blair Holt Bill, was introduced to a chilly reception in Congress by Chicago Congressman, Bobby Rush. Rush’s bill included conditions for gun ownership, such as a requirement that guns be disassembled while not in use, that would be unconstitutional if the Heller decision is applied to the states.

Modest Change

If the Supreme Court determines that citizens of all states have the same inalienable rights to self-defense and firearms ownership, it will not result in a complete overhaul of all state restrictions. In the Heller ruling, the Supreme Court listed a number of permissible restrictions which it seemed to leave up to local jurisdictions to decide for themselves.

Quoting from the Heller decision, these restrictions include the following:

• “prohibitions on the possession of firearms by felons and the mentally ill”
• “laws imposing conditions and qualifications on the commercial sale of arms.”
• “concealed weapons prohibitions”
• “the historical tradition of prohibiting the carrying of dangerous and unusual weapons”

The Heller decision also upholds governments’ right to require registration or licensing:

“Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”

 While the court does not require any of these listed restrictions, in the tradition of federalism it leaves the door open to local sentiment and control within specified bounds as long as they are well short of de jure or de facto bans. This is in line with the emerging policy of the Obama administration, which favors federalism and local control in matters of firearms policy. AHSA believes this approach is in the best tradition of our federal system; but we would also argue that state-level pre-emption laws that apply a single legal standard throughout a state are better than a patchwork of confusing and draconian local laws that make criminals out of law-abiding citizens who innocently cross unmarked or unposted boundaries.

Our bet is that the Supreme Court will rule on the side of gun owners and of the original intent of the founders of our republic by incorporating the Second Amendment to apply to all jurisdictions. If you have an FFL in the Chicago area, you can expect some new customers come this spring.

I thought I would share with all of you the letter I sent to Attorney General Eric Holder on February 26th:

February 26, 2009

Mr. Eric Holder    
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Holder:

Congratulations on your appointment and confirmation as Attorney General of the United States.   I am writing to address your recent comments about the renewal of the federal assault weapons, which I read in The Hill today.   This raises grave concerns for me and other law-abiding gun owners.  I strongly urge you to reconsider this effort.

For the past four years, I have served as President of the American Hunters and Shooters Association (AHSA).  We are a gun rights organization with a commitment to protecting our environment, preserving open spaces and keeping our communities safe.  Then-candidate Obama shared many of our views and we endorsed his candidacy last April.  I was honored to serve as a surrogate for the campaign.  Last fall, I spent a great deal of time talking to gun owners, many of whom were union members, on behalf of the Obama-Biden ticket through over 40 appearances in Ohio, Minnesota, Florida and Colorado.  I also did a radio ad, which was broadcast nationally, and was featured in the campaign's direct mail.  Barack Obama's election was critically important for the future of our nation and to the million of gun owners, like me, who voted for him.

That is the reason I want to address the Federal Assault Weapons Ban, which passed in 1994 in the Violent Crime Control and Law Enforcement Act of 1994 and expired on September 13, 2004.  It is my understanding that the Obama administration continues to state its intention to reinstate that ban.  I would strongly encourage you to negate that effort. The assault weapons ban is an issue of great import to America's law-abiding hunters and shooters, who I represent through my role as President of AHSA.   But, this issue shouldn't be based on politics, it's about policy.

Most importantly, as studies have shown, the law had no measurable effect on crime reduction and created an easily avoidable template for gun manufacturers to work around. Instead, the law demonized lawful gun owners and became a lightning rod for a decade long public debate over gun crime that merely served to divert time and resources from our already over-burdened law enforcement agencies.  Frankly, it has been an unnecessary distraction.  Gun owners support efforts to keep our communities safe.  We just want those policies directed at the root cause of crime and violence and not just symbolism, which is how the Washington Post accurately described the ban back in 1994.

Since the Federal Assault Weapons Ban's enactment, the studies analyzing its effect showed there was no statistical significant evidence that it reduced gun crimes. In fact, two studies prepared for the United States government confirm that fact:  The Department Of Justice-funded study issued in July of 2004 titled "Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003" and the Center for Disease Control's Task Force on Community Preventive Services report "First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws" issued in October of 2003.

The Federal Assault Weapons Ban's major thrust, which was based on a political compromise between competing bills in the U.S. Senate, was to ban the manufacture and sale of certain gun models that had two or more of the following features, considered by most to be merely cosmetic: pistol grip, folding/collapsible stock, flash suppressor/muzzle brake, large-capacity detachable magazine, bayonet mounting point, and a grenade launcher mounting point.  However, manufacturers just put these features on guns in variable combinations instead of using an "all-in-one" approach, meaning that post-ban guns sold were effectively duplicates of pre-ban guns with a mix and match of the isolated features.  The new law became a "charade."

The Federal Assault Weapons Ban also prohibited the production of large capacity ammunition feeding devices (clips) that carried more than 10 rounds. However, large pre-ban clips were always available, albeit with a higher price point, from dealers, on the internet, at gun shows, or from international sources (especially from former Warsaw Pact countries that had large quantities of AK-47 magazines of various capacities that could fit a variety of both pre-ban and post-ban AK-47 variants).   Again, the law was meaningless.

In addition, law abiding sport shooters, collectors, self-defense advocates and hunters who bought semi-automatic replicas of military ordinance felt they had become targets of over-reaching law enforcement agencies because of the demonization of their lawfully owned guns or what they thought was a lawful hobby. This caused a chilling of support for law enforcement by an untold number of citizens who would never imagine themselves as law-breakers, which is exactly the opposite response you would hope to get from legislation intended to fight crime.

Finally, since the ban was first enacted back in 1994, there has been a major development in the interpretation of the Second Amendment, which must also be considered.  The decision in Heller v. District of Columbia established the principle that citizens have the right to keep and bear arms.   The Supreme Court decision must guide your thinking as you proceed.

We share your commitment to reducing crime and gun violence.  We believe, as law-abiding gun owners, the way to do that is not by banning guns, but by making sure that criminals, terrorists and people who can harm themselves and others do not get guns.  Law-abiding gun-owners will overwhelmingly support your efforts along those lines.  Again, I applaud your long-standing service to our country and defense of the Constitution. I do however ask you work to ensure that any law enforcement legislation the administration proposes aimed at reducing gun crime in our communities will actually lower gun crime.  Policy considerations should dictate this decision.

Sincerely,

Ray Schoenke, President
American Hunters and Shooters Association

A couple weeks ago, I wrote a diary about the 670 hunting and fishing organizations that signed a letter to Congress urging action on climate change. My organization, the American Hunters and Shooters Association (AHSA), was proud to sign that letter. As, hunters, we see first hand the impacts of global warming or "climate change".

There was a conspicuous absence from the signatories to that letter: The National Rifle Association.

You’d think the leadership of the National Rifle Association would be highly concerned about one of the most important issues facing our sporting community -- climate change -- because it is having a dramatic impact on hunters.

But, I’ve figured out why the NRA didn’t sign the letter.

Leaders of the NRA are playing politics again with issues of grave concern to America’s hunters and shooters. They have assumed a key role in the movement of "global warming deniers".

If you want clear evidence, check out the Heartland Institute’s "International Conference on Climate Change" held in NYC this week. Don’t let the name fool you. These are the folks who want to disprove global warming, a rebirth of the "flat earth society" if you will. Diarist Target Global Warming liveblogged the event here and here. Even the New York Times provided coverage:

One of the "most powerful political actors" is none other than NRA Board member and right wing guru, Grover Norquist. His group, Americans for Taxpayer Reform, was a conference co-sponsor for the gathering of the self-proclaimed global warming "skeptics."

NRA Board Member Roy Innis, from the Congress of Racial Equality (CORE) was a speaker and his group was also a co-sponsor.

Not like we needed any further evidence that the current NRA leadership is nothing but a front for the radical right wing agenda, but there it is.

This is another example of how far removed the NRA leadership is from its membership. Not only does the group not focus on the real concerns of hunters, they’ve got board members sponsoring a conference that claims climate change doesn’t exist.

The NRA’s leadership has repeatedly worked against the interests of hunters and shooters. That’s probably because many of the NRA’s leaders don’t hunt. If Wayne LaPierre, Grover Norquist, Roy Innis and their allies actually hunted on a regular basis, they wouldn’t be skeptics. They’d know firsthand the problems climate change is causing. They’d understand why those 670 hunting and fishing groups consider it "our moral responsibility to confront climate change in order to protect our outdoor heritage and our children’s future."

There is no getting away from what the current leadership of the NRA has become. They’re a right wing front group in bed with the GOP -- lock, stock and barrel.

To the great detriment of America’s hunting tradition, NRA’s leadership has abandoned hunters for their cozy political allies. Their actions speak louder than words -- there is no room for real hunters. We hunters don’t fit into their extreme political agenda.

So, NRA board members sponsor a conference that denies global warming while 670 hunting and fishing groups are demanding action. That says it all.

The NRA lackeys have put a lot of time and energy into attacking AHSA and me. I just wish every now and then, they’d put half the amount of energy into something worthwhile that would have a positive impact.

They’ll keep launching full-scale attacks on AHSA and me. They don’t intimidate me. What I am fighting for is too important.

NRA's right wing attack dogs have been having quite a time this past week trying to weave a web of deception designed to discredit me and the leadership of the American Hunters and Shooters Association (AHSA). In my recent diaries at Daily Kos (here and here), I have carefully laid out how AHSA, a new progressive gun rights organization, tapped into the concern of rural hunters and shooters over NRA's failure to address access to public land and environmental issues resulting in a stunning NRA defeat in the hotly contested 2006 Missouri US Senate race. I'm sure many Kos readers were as surprised as I was that NRA, once again, acknowledged AHSA's campaign made the difference for Claire McCaskill in that key 2006 Senate race.

Now, in the second attempt in a week to deflect attention away from their own failures, NRA tries again to label AHSA as anti-gun. They use the tired old "guilt by association" game to argue that AHSA is not serious about gun rights or protecting our hunting and shooting heritage. Moreover, they feign surprise that some rational and reasonable gun owners would describe ultra-conservative NRA lapdogs as "whackos".

I, like many progressive hunters and shooters, have supported many leading Democrats who the NRA has tried to demonized and defeat. I have also supported Democrats that the NRA has supported. That doesn't mean I am anti-gun, it means I spend my political dollars wisely to support those progressive candidates that I believe, on balance, will make America a better place to live. NRA has a hard time accepting the fact that the overwhelming number of candidates the NRA supports, mostly Republicans, may be good on gun rights, but universally are the worst of the worst on preserving our precious resources and protecting our hunting heritage.

NRA lackeys go after Bob Ricker, AHSA co-founder and Executive Director who has a reputation as one of the nation's top gun policy experts. A former assistant NRA general counsel and top lobbyist for the gun industry, Bob stepped forward a few years ago and went public about the NRA/gun industry conspiracy of silence and their refusal to address the problem of corrupt gun dealers who sell guns to criminals. NRA has long had it out for Bob after he was quoted in the New York Times as saying someone in the gun industry needed to speak up about bad dealers because ''we've got a bunch of right-wing wackos at the N.R.A. controlling everything.''

I can remember when I got my first gun as a kid growing up in Texas. The NRA was a respected hunting and gun safety institution. Over the last twenty years however, the organization has changed dramatically. Their leaders call our first responders "jack booted thugs"; they fight efforts to restrict armor piercing handgun ammunition that threaten cops; they oppose background checks on all sales at gun shows; they opposed voluntary industry efforts to provide free child safety locks with all new guns sold; they oppose efforts to keep guns out of the hands of terrorists; they want to repeal restrictions on keeping guns out of bars and restaurants when liquor is served; they want to force employers to allow guns in the work place; they oppose efforts of our nation's big city mayor's to stop illegal gun traffickers; and, incredibly, they want to criminalize efforts by law enforcement to share crime gun trace information. This is just a short list that more than justifies labels like "right wing whackos."

The final absurdity of NRA's new attack involves the accusation that somehow the friend of the court brief AHSA filed in the landmark US Supreme Court case District of Columbia v. Heller, is nothing more than an "opportunity to create false pro-gun credentials" for AHSA.

The AHSA brief was co-signed 11 senior military leaders and was written by the national powerhouse law firm Greenberg Taurig. We argue that that the District of Columbia's Gun Law directly interferes with various Acts of Congress that are aimed at ensuring the national defense by promoting firearm training amongst the citizenry. AHSA believes the D.C. Gun Law's categorical prohibition on pistol ownership by D.C. residents not only conflicts with the Second Amendment and the Defense, Raise and Support Clauses of the Constitution, but also with the District of Columbia Home Rule Act.

Using tortured logic, NRA claims in its hit piece that AHSA's argument, if adopted by the Court is an under handed attempt to make it easier for states to pass more restrictive gun laws. How absurd.

NRA, as usual, fails to mention that several other amicus briefs filed in support of the lower court decision rely on arguments similar to AHSA's. Including the briefs signed by Dick Cheney and members of congress and a brief filed by a number of state rifle and pistol associations. Most importantly, Wayne LaPierre's attack dogs failed to mention NRA's devious attempt to scuttle the Heller case in its early stages.

There is a good reason why NRA is not leading the fight in the most important 2nd Amendment case to reach the US Supreme Court in over 70 years. According to Robert Levy, the millionaire Cato Institute Scholar that is bankrolling Heller, NRA interference almost killed the case. Levy's assertion were confirmed when LaPierre acknowledged NRA backhanded efforts in the New York Times on December 3, 2007:

In other words, Wayne was worried that the NRA might win in the appellate court but it could become a "problem" if the DC gun ban case reached the Supreme Court. My question is: A problem for whom? DC gun owners or future NRA fundraising appeals?

People who know me know that I do not tolerate bullies. In my day, there were plenty of players in the NFL that tried to play the role of bully and more times than not when challenged with a quick, solid counter punch, their true nature as cowards would show through. The current NRA is run by bullies and I've laid down the challenge. Come on Wayne, are you man enough to meet me in the duck blind to prove who is a real hunter and shooter?