Second Amendment

  • January 29, 2016

    by Jim Thompson

    In The Orange County Register, ACS Board member Erwin Chemerinsky defends the constitutionality of President Obama’s executive action on gun control.

    Jill Dash, ACS’s vice president of strategic engagement, highlights the current judicial vacancy crisis on Bankrate.

    Rachel M. Cohen at The American Prospect considers how Cruz-Guzman v. State of Minnesota, a provocative civil rights case, could change the landscape of American education. The statement of the plaintiffs can be read here

    At Jacobin, John Patrick Leary says the Flint water contamination crisis underscores “the human toll of running a state like a business,” writing, “when a government is run like a business, much of its infrastructure and personnel become superfluous.”

    Detroit school teachers’ “sick outs” and the Flint water crisis highlight the disastrous consequences of Michigan’s emergency manager laws, opines Julia Lurie at Mother Jones.

    In The American Prospect, Eliza Newlin Carney reviews a score of new books examining the growing influence of dark money in politics, including Rick Hasen’s Plutocrats United and Derek Cressman’s When Money Talks. Hasen’s ACSblog BookTalk can be read here, and Cressman’s BookTalk can be found here

  • January 22, 2016

    by Christopher Durocher

    Presidents Obama’s executive actions on guns, announced this month, have drawn unfair and unwarranted criticism, according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars. In testimony submitted to the Senate in advance of a hearing held this past Wednesday, Chemerinsky, who is also a member of ACS’s board of directors, explains that the president’s actions “are clearly constitutional. The new policies announced by President Obama are relatively modest and are entirely focused on enforcing existing statutes. Thus all are within the permissible scope of executive power without infringing the Second Amendment.”

    Among the president’s executive actions, Chemerinsky notes, is guidance from the Bureau of Alcohol, Tobacco and Firearms (ATF) that “clarifies which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers” and directives to the ATF and FBI to “prosecute individuals who illegally attempt to obtain firearms and also to inform state law enforcement whenever a prohibited person in their state fails a background check.” Chemerinsky describes both measures as “common sense” efforts to better enforce existing federal law. He further notes that, “Not one federal court ever has questioned the constitutionality of the federal laws being enforced by President Obama’s executive order.”

  • January 12, 2016

    by Jim Thompson

    Questions asked by the Supreme Court’s conservative bloc during oral argument in Friedrichs v. California Teachers Association suggest the Court is ready to render a decision that would significantly weaken public employee unions, writes Richard D. Kahlenberg in The New York Times.

    In response to President Obama’s recent executive orders, Nathalie Baptiste at The American Prospect discusses past and present congressional barriers to effective, robust research on the impact of guns.

    On Friday, New York City Police Sgt. Kizzy Adonis was served with internal disciplinary charges for her role in the violent confrontation that led to the death of Eric Garner, reports Al Baker in The New York Times. Adonis was placed on modified duty, stripped of her gun and badge, and barred from street duty while she awaits further judgment from a departmental judge. Officer Daniel Pantaleo, the individual who choked Garner to death, currently faces no charges.

    On Monday, Judge L. Felipe Restrepo was finally confirmed to fill a long-standing vacancy on the Third Circuit Court of Appeals, says Tracie Mauriello in the Pittsburgh Post-Gazette. A new statement from Sen. Patrick Leahy (D-Vt.) blasts lawmakers for obstructing the judicial nomination process and weakening the nation’s judicial system.   

  • January 11, 2016
    Guest Post

    by Saul Cornell, the Paul and Diane Guenther Chair in American History, Fordham University

    In a thoughtful post on Politico, legal scholar Austin Sarat ponders why liberals have not made over-turning  District of Columbia v. Heller (2008)  a high priority. In that decision  a narrow 5-4 majority reversed 70 years of precedent and established, for the first time in the Court’s history, an individual right to possess a weapon for self-defense outside of the context of service in a well-regulated militia. Predictably, gun rights ideologues, such as the National Review’s Charles Cooke, have responded to Sarat in a vituperative manner, demonstrating once again how widespread ignorance about early American history continues to cloud this debate. Sadly, knowledge of the relevant history has never been a requirement for entry into the Second Amendment debate. Indeed, knowledge of history seems to be almost inversely proportional to ones commitment to gun rights ideology. Before demonstrating the multiple errors in Cooke’s flawed version of history, it is important to consider Sarat’s question: What should progressives do about Heller

    The first thing to observe is that Scalia’s absurd originalist methodology has been thoroughly discredited in the scholarly literature.  Some of the harshest criticism has come from true constitutional conservatives, including J. Harvie Wilkinson and Charles Fried. Although the methodology in Heller, as Judge Posner has written, borders on incoherent – the outcome—declaring an individual Second Amendment right to have a gun for self-defense—is what most Americans believe to be true, including such liberal stalwarts of gun control as Charles Schumer and, yes, President Barrack Obama. Indeed many scholars, most notably Reva Siegel, have noted that Heller is really an example of living constitutionalism dressed up in originalist garb. This fact presents a real dilemma for progressives. Given that most Americans believe that the Second Amendment now protects an individual right and most liberals favor a theory of a living Constitution—what should liberals think about Heller? This is not the place to answer that question, but Sarat deserves credit for raising the issue, which merits some thoughtful attention by progressives.

    As far as Cooke’s ill-informed gun rights rant goes, a closer look at the evidence easily demonstrates why he might want to reconsider heading back to Oxford for some serious training in history beyond his undergraduate courses.  His simplistic and anachronistic take on a complex legal and historical issue is a bit of an intellectual embarrassment to his distinguished alma mater.  Consider his first point that it is “unbelievable” that “that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power.” Gun rights advocates seldom seem to grasp the historical relationship between the Second Amendment right as framed and the complex politics of the militia in the Founding era.  At the time of its framing, anti-Federalists demanded both a transfer of federal control of the militia back to the states and protection for the right to bear arms for use in the militia. There are hardly any contemporary examples of discussions of a right to hunt or other private uses of firearms during ratification.  This does not mean that Americans did not value such rights, but not every right was elevated to the status of a constitutional provision.  There is no mention of a right to travel in the Constitution, but clearly Americans understood that this right existed.  In the end Anti-federalists were out maneuvered by Federalists and got the right to bear arms and no provision providing for a restoration of   state power over the militia. Here is what a leading Anti-Federalist author, using the penname “Centinel,” said about an early draft of the Second Amendment:

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, &c.”  It is remarkable that this article only makes the observation, “that a well regulated militia, composed of the body of the people is the best security of a free state;” it does not ordain, or constitutionally provide for, the establishment of such a one.

    Justice Scalia actually quotes this text in Heller and somehow twists its original meaning into a defense of an individual right to have arms. The obvious meaning of the text belies such a reading. “Centinel” shared the common Anti-Federalist complaint that the Second Amendment asserted a principle about militias, but failed to provide any structural means to guarantee it. There is nothing “farcical” about this—it is part of the complex historical give-and-take that resulted in the adoption of the first ten amendments.          

  • January 5, 2016
    Guest Post

    by Ariela Gross, the John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law.

    President Obama today took several important although limited executive actions to curb gun violence. Following the recommendations suggested by a group of law professors last month, he closed the “gun show” loophole by requiring that everyone “in the business of selling firearms” be licensed and conduct background checks; he directed the FBI and ATF to prosecute vigorously those individuals who seek to buy guns after failing background checks; and called for stricter enforcement of domestic abusers who use guns; as well as promising more funding for enforcement of the existing gun laws. All of them relatively mild, sensible moves well within his constitutional authority – and no threat to the Second Amendment.

    You would think from the GOP’s reaction that he had suggested government agents march into people’s homes and seize their firearms en masse. Texas Governor Greg Abbott’s “COME AND GET IT” challenge has been re-tweeted five thousand times as of this writing. “Pretty soon you won’t be able to get guns,” warned Donald Trump. Paul Ryan claims President Obama is “going after law-abiding citizens,” and Jeb Bush calls his actions “unlawful.” Plans to challenge the actions in court are already underway.

    We shouldn’t be surprised by this uproar. Despite strong popular support in recent polls for these limited gun control measures, Republican officeholders and candidates are deeply indebted to the NRA for financial support. In 2014, The NRA spent nearly $11 million in independent expenditures for Republican candidates, and well over $3 million on lobbying against gun restrictions.

    Just as the NRA has contributed to the political polarization that ails American politics – so that Republican leaders can’t support even the mildest of limits on guns, ones that would have been uncontroversial even ten years ago – the disparate racial impact of our gun culture is increasingly evident. According to Nate Silver, African Americans are killed at twelve times the rate of people in other developed countries. In July, Chicago activists brought suit in Cook County Circuit Court alleging that the methods of “licensing and regulating gun dealers” employed by three Chicago suburbs violate the Illinois Civil Rights Act because of the disparate impact of the resulting gun violence on African Americans in Chicago. In recent months, we have seen a rash of police shootings of black men and boys, most of which have gone unpunished. And at the same time, a gang of white criminals armed with guns, named “militia-men” rather than thugs or terrorists in the mainstream press, has hijacked a Federal building and demanded the overthrow of the government.

    For the moment, however, we can applaud President Obama’s actions, his words, and his determination to stand firm against the inevitable NRA onslaught. Much, much more is needed to prevent the mass shootings that have become almost a daily routine in the past several years. For that, we must all mobilize to push Congress to act.

    [image via Gage Skidmore]