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« Five reasons the NRA wins | Main | Feinstein's "assault weapon ban" and exceptions »

Brady sues over mandatory gun law

Posted by David Hardy · 17 May 2013 12:09 PM

Nelson, GA has enacted a law requiring every household to be armed, and Brady Campaign has filed a legal challenge. Since apparently there's no penalty for violation (a feature of the earlier Kennesaw ban, due to some advice I gave decades ago), I have trouble seeing "case or controversy." It would, I'd think, be a chance to trot out Framing era militia statutes, tho.

The Second Amendment's right to arms clause establishes that you may decide how many firearms to own.

Its militia clause, however, recognizes that "none" may be the wrong answer.

8 Comments | Leave a comment

Mman | May 17, 2013 2:56 PM | Reply

Maybe the statute should have been drafted as a tax on non-firearm owners.

DJMoore | May 17, 2013 3:52 PM | Reply

Given Congress' Art I, sec 8 power to arm the militia, maybe the town council could step in and stock militia rifles at City Hall. If you have no weapons of your own, you will be issued one from the city armory.

DJMoore | May 17, 2013 3:53 PM | Reply

Pardon, I meant, "given the ArtI, sec 8 powers as a model".

Eric | May 17, 2013 8:24 PM | Reply

So lessee, Gura and SAF and the NRA sue the capital city of the United States, and the capital city of the only state that totally bans citizen carry, over basic Constitutional issues, and the Brady Bunch sues...Nelson, Georgia, population 1300. Over a law that wasn't even intended to be enforced.

The mouse that...squeaked.

I like the idea of taxing people who do not buy guns, now that we know that not doing something is constitutionally taxable.

jnh | May 17, 2013 9:50 PM | Reply


Ha, the shoe is on the other foot now!

So does HCI/Brady claim an *individual* right not to be armed? What specific clause of the Constitution do they claim protects an individual right not to be armed?

Or do they claim a *collective* right not to be armed? Again, per which clause of the Constitution? And what is their standing?

Or do they claim that the local statute is preempted by federal law? In which case they definitely lack standing.

The power to organize and arm the militia ultimately lies with Congress, but I've found a couple of judicial precedents for mandatory arming under federal law as enforced by Massachusetts. These were prosecutions for failing to comply with the self-equipping requirements of the 1792 and 1803 militia acts.

JNH | May 17, 2013 10:14 PM | Reply

Coming back to me . . .

J. Stevens's dissent in _Heller_ took the position (I think his note 19) that the states retain the authority to arm citizens. Stevens was trying to refute J. Scalia's argument that the 2nd Am right cannot be made contingent on state authority that is itself subject to federal preemption.

Chris (Mainsail) | May 20, 2013 8:27 AM | Reply

I think it’s all posturing; I doubt they’ll follow through. If they go through with it, good, then they’ll have less money to use for harassing other law abiding gun owners.

jnh | May 22, 2013 11:12 AM | Reply

Doesn't matter if they go through with it. But it would be fun to get them to commit certain arguments to paper. They argued for years that the 2nd Am protects the "right" of the state to arm citizens.

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