March 2005
GCA 68, the Commerce nexus, and Dr. Emerson
Dr. Tim Emerson, who brought the interesting Second Amendment appeal -- the Fifth Circuit held the Amendment was an individual right, but that the statute in question passed muster -- was on remand convicted.
Question: had he actually violated the Gun Control Act? The charge against him was that he had continued to possess a gun after being subject to a domestic violence restraining order. As the Supreme Court noted in the Lopez case, there are several ways Congress can deal with its Commerce Clause powers/limitations, and the most direct way is to write the required Commerce connection into the statute as an element to be alleged and proven by the prosecution.
The relevant section of the GCA, 18 USC 922(g,) makes it unlawful for a prohibited person (including anyone subject to a restraining order ) "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Let's parse that.
1. It is illegal to be a prohibited person and to ship or transport a gun in interstate commerce. Emerson hadn't shipped or transported it anywhere after he became a prohibited person, so he's safe there.
2. It is illegal to be a prohibited person and possess a gun in or affecting commerce. Emerson wasn't in interstate commerce at the time, and it's hard to see how the gun in his bedroom affected commerce. (More on this anon).
3. It is illegal to be a prohibited person and to receive a gun which has ever been shipped in commerce. Emerson received the gun -- but he wasn't a prohibited person at the time he did so. So, again, he seems home free.
This isn't a constitutional issue. It's a simple question of the face of the statute and what Congress chose to criminalize. For whatever reason, it chose a different Commerce nexus to define each prohibited act, and Emerson's actions appear to have violated none of the statutory provisions.
So how could he have been convicted?
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Permalink · Commerce Clause · Comments (0)
Party Platforms, mid-19th century
An interesting historical point (thanks to Gene Volokh for the discovery):
In the mid-19th century, both major parties saw the right to arms as an individual right. The 1856 Republican platform protested at disarmament in Kansas, and the 1864 Democratic one at disarmanent in Maryland.
"Resolved: That while the Constitution of the United States was ordained and established by the people, in order to "form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty," and contain ample provision for the protection of the life, liberty, and property of every citizen, the dearest Constitutional rights of the people of Kansas have been fraudulently and violently taken from them.
Their Territory has been invaded by an armed force;
Spurious and pretended legislative, judicial, and executive officers have been set over them, by whose usurped authority, sustained by the military power of the government, tyrannical and unconstitutional laws have been enacted and enforced;
The right of the people to keep and bear arms has been infringed....
The right of an accused person to a speedy and public trial by an impartial jury has been denied;
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, has been violated...."
1864 Democratic Party Platform:
"Resolved, That the aim and object of the Democratic party is to preserve the Federal Union and the rights of the States unimpaired, and they hereby declare that they consider that the administrative usurpation of extraordinary and dangerous powers not granted by the Constitution — the subversion of the civil by military law in States not in insurrection; . . . the suppression of freedom of speech and of the press; . . . and the interference with and denial of the right of the people to bear arms in their defense is calculated to prevent a restoration of the Union and the perpetuation of a Government deriving its just powers from the consent of the governed. "
The point is simply that, in the period after the adoption of the Second Amendment, and immediately preceding that of the Fourteenth Amendment, there seems to have been no doubt that the right to arms was an individual right, and on a part with First, Fouth, and Fifth Amendment rights.
Permalink · Framers to the Civil War · Comments (0)
Bumper crop of Commerce Clause cases?
A recurring issue in firearms cases (see Lopez v. US, Bass v. US, etc.) is whether Congress has exceeded its constitutional power to regulate interstate commerce when it criminalizes acts such as simple possession of a firearm within a single State.
The U.S. Supreme Court has just accepted its second case this term involving commerce clause issues. Cutter v. Wilkinson (03-9877) involves the Religious Land Use and Institutionalized Persons Act, which requires States to make certain accomodations for religious practices for prisoners, and is based in part on Commerce powers. The 6th Circuit invalidated portions of the Act on First Amendment grounds, but the Commerce issue was also raised at the District Court level and is included in the petition for cert. here's a summary. Oral argument is set for May 27.
The Court earlier accepted certiorari in Ashcroft v. Raich (03-1454), which challenges the federal Controlled Substances Act as applied to medicinal marihuana grown and consumed in a single state, as authorized by state law. Summary. Raich was argued November 29, 2004, by none other than Second Amendment author Prof. Randy Barnett.
Both cases should test the Court's ideological impulses, since invalidating the statutes would be an appealing result for the liberal wing (which on the other hand favors a broad reading of Commerce powers) and an appalling result for the conservative wing (which generally favors a narrower reading of those powers).
Permalink · Commerce Clause · Comments (0)
Roy Lucas: The Forgotten Justice McReynolds
Roy Lucas, who died of a heart attack last year, was an incredibly prolific writer who had just become interested in the Second Amendment. Before he died, he drafted "The Forgotten Justice McReynolds," an article devoted to the author of U.S. v. Miller. Download file
Roy didn't think much of McReynolds, but then no one else has thought much of him, either.
Permalink · US v. Miller · Comments (0)
Kopel: "The Klan's Favorite Law"
Dave Kopel's latest is an article in Reason entitled "The Klan's Favorite Law: Gun Control in the Postwar South." A few excerpts:
After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi's provision was typical: No freedman "shall keep or carry fire-arms of any kind, or any ammunition."
. . . .
The Special Report of the Anti-Slavery Conference of 1867 complained that freedmen were "forbidden to own or bear firearms and thus.rendered defenseless against assaults" by whites. Or as a letter printed in the Jan. 13, 1866 edition of Harper's Weekly observed: "The militia of this county have seized every gun found in the hands of so-called freedmen in this section of the county. They claim that the Statute Laws of Mississippi do not recognize the Negro as having any right to carry arms."
. . . . .
Congress' "Report of the Joint Committee on Reconstruction" set forth the factual case for the need for a 14th Amendment to protect the liberties enumerated in the federal Bill of Rights. At the Committee's hearings, General Rufus Saxon testified that all over the South, whites were "seizing all fire-arms found in the hands of the freedmen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.'"
Permalink · 14th Amendment · Comments (1)
Lord Somers' notes on 1688 Declaration of Rights
The British 1688/89 (old vs. new style dates) includes the guarantee that "the subjects which are protestant may have arms for their defense suitable to their condition and as allowed by law." Some commentators -- Roy Weatherup, for example -- still try to read this as some manner of "collective right" -- in his explanation, "It should be pointed out that the King did not disarm Protestants in any literal sense; the reference is to his desire to abandon the militia in favor of a standing army..."
The claim is untenable in light of the unearthing of a 1778 volume by a British antiquarian, which reprints the notes of Lord Somers (floor manager for the Declaration in the House of Lords), on the debate in the House of Commons. The notes make clear that the speakers were in fact moved by the fact that they and others ("himself disarmed") had been individually subjected to confiscation.
Permalink · 17th Century · Comments (0)
NFA Record Problems
An interesting compendium of studies on the National Firearm Act registry and its problems.
The National Firearms Act of 1934 requires a tax payment, and thus registration, for each making or transfer of certain firearms (chiefly full-automatic, or short barreled guns). Possession of such a firearm without registration is a felony, and in any prosecution for that offense an element is certification by ATFE that the firearm is not registered to the defendant. ATFE is in charge of maintaining the NFA database, which has several hundred thousand firearms listed.
As far back as 1980, it was known that the database had serious flaws and omissions (an ATF internal memo of the period expressed fears that innocent persons might be convicted due to a certification that a firearm had not been registered, when in fact it had been).
Eric Larson has over many years done yeoman work in further investigating the problems and in pushing for Inspector General investigation of the problem (the IG in turn told ATFE to look into it -- although the entire reason for having an IG is to deal with problems where the agency itself might have a temptation to cover up.
Permalink · National Firearms Act · Comments (0)
Hoffer writes the book on L'affaire Bellesiles
Peter Hoffer's "Past Imperfect: Facts, Fiction and Fraud, American History from Bancroft and Parkman to Ambrose, Bellesiles, Ellis and Goodwin" does an excellent job of tracking the rise and downfall of Michael Bellesiles. For those who weren't following the controversy, MB was a professor of history at Emory; his book "Arming America" claimed that Americans had little or no "gun culture" before the Civil War.
His downfall came when computer programmer and amateur historian Clayton Cramer fact-checked his sources and discovered that ... not to put too fine a point on it, large portions seemed to be fabricated. The community of professional historians initially rallied to defend Bellesiles against this attack by an amateur. Eventually, however, the William and Mary Quarterly created a team of three respected professionals to settle the controversy -- and the three found that, indeed, there had been academic misconduct. Bellesiles resigned his position and the publisher withdrew the book from publication.
Here's a review of Hoffer's book on the matter.
Continue reading "Hoffer writes the book on L'affaire Bellesiles"
Permalink · academic fraud · Comments (1)
Right to bear arms ... in Iraq
From an Iraqi blog:
Iraqi citizens Kill 5 terrorists
From Radio Sawa (Arabic link):
Citizens of Al Mudhiryiah (a small town in the "death triangle") were subjected to an attack by several militants today who were trying to punish the residents of this small town for voting in the election last Sunday. The citizens responded and managed to stop the attack, kill 5 of the attackers, wounded 8 and burned their cars. 3 citizens were injured during the fire exchange.