Posts Tagged ‘gun rights’

What are they thinking?!

NRA logo

NRA logo

The National Rifle Association (NRA) just cut a deal with the Democrats. This deal will protect the NRA from some obnoxious requirements in a proposed bill, but at the expense of the free-speech rights of many other groups. And, it’s not exactly terrific for the gun lobby, either. Before we get into this latest issue, though, let’s look at some other questionable behavior of late by the stalwart association:

2004: Anxious to pass the Firearms Manufacturers’ Lawsuits Protection bill, the NRA told anti-gun politicians that if they would vote for the Lawsuit Protection bill, the NRA would not oppose re-authorization of the about-to-end Clinton Gun Ban. A concerted effort by other gun-rights groups to expose the deal forced the NRA to back off. Fortunately, the Lawsuit Protection Bill still passed and the Clinton Gun Ban ended.

2007: Following the Virginia Tech massacre, gun-control groups took the opportunity to push their agenda via Rep. Carolyn McCarthy’s (D-NY) NICS Improvement Amendments Act (HR2640) — called by some gun-rights groups the “Veteran’s Disarmament Act”. Regrettably, the NRA caved in to pressure and, along with its oft-nemesis, the Brady Campaign to Prevent Gun Violence, helped the bill to pass.

2009: The NRA was strangely, nearly silent in the confirmation battle over radically anti-gun judge Sonia Sotomayor. The letter to the Senate that finally was sent in July said it was “out of respect for the confirmation process”, as if it was unclear what Sotomayor’s position was on the issue. It certainly was not. So, why the hesitation to take a firm position?

2009: For some bizarre reason, the NRA refused to oppose Eric Holder’s nomination for U.S. Attorney General, even though he would be (and now is) the most anti-gun A.G. in the nation’s history.

This brings us to their most recent decision. First, a little background info….

As you may recall (and as I posted about), the U.S. Supreme Court gave a ruling back in January that struck a blow against McCain-Feingold and essentially “restored the First Amendment right of corporations, unions and nonprofits to make independent campaign expenditures.” Well, Democrats in general were none too happy with this. As John Bresnahan at Politico summed it up, “Democratic leaders fear the Citizens United decision could open the floodgates for corporate money to flow into this year’s midterm elections, which they believe would favor Republican interests.” So, some of them put together a new campaign finance bill that would counter, even neuter, the effects of the Citizens United v. Federal Election Commission (FEC) ruling. This new bill (HR5175), dubbed the Disclose Act and sponsored in the House by Representative Chris Van Hollen (D-MD), “would require special-interest groups to disclose their top donors if they choose to run TV ads or send out mass mailings in the final months of an election.”

Well, that doesn’t sound TOO bad, until you realize that the disclosures are not just to be made to the FEC in a timely manner. They have to be done DURING the ads. In any ad they run, they must list the names of multiple donors, thereby reducing the time spent on the actual message. The CEO of a corporate donor is required to personally appear in campaign-related ads. The period of coverage for these special rules is expanded to virtually the entire election year. And a plethora of additional rules have been added, as well. The Disclose Act is, in effect, a direct attack on the First Amendment right of American citizens, via their membership in or support of certain corporations or organizations, to petition Congress and mention legislation or voting records during election season. Some refer to it as the DISCLOSE Act, an acronym that stands for “Democratic Incumbents Seek to Contain Losses by Outlawing Speech in Elections.” (Its sister bill in the Senate is sponsored by Senator Chuck Schumer (D-NY). Surprised?)

According to Democrats, the goal is “to expose corporations and unions that create ambiguous front groups to run attack ads during campaigns.” The Republican response? “This bill is both a smoke screen to adopt still more restrictions on political speech in the name of ‘reform’ and an attempt to use Citizens United as a smoke screen to stifle criticism of Democrats in order to help their candidates retain office in the 2010 election.”

Moderate/conservative, pro-gun Democrats refused to back the legislation. In fact, Rep. Heath Shuler (D-NC) was one of those that expressed concern about the act “hinder[ing] or penaliz[ing] the efforts of certain long-standing, member-driven organizations who have historically acted in good faith.” Shuler, who supports the NRA, was the first to suggest an exemption for the NRA and other nonprofits. Campaign watchdog groups objected, but a slightly milder special exemption was able to be negotiated. Those organizations which meet certain criteria get a pass — they will not be subject to the Disclosure Act’s reporting and disclosure requirements.

What criteria? Well, the wording for the so-called “manager’s amendment” under consideration specifies that it applies only to those organizations which:

a) have qualified as having tax exempt status under section 501(c)(4) of the tax code for each of the 10 years prior to making a campaign-related disbursement,

b) had 1 million or more dues-paying members in the prior calendar year,

c) had members in each of the 50 states,

d) received no more than 15 percent of their total funding from corporations or labor organizations, and

e) do not use any corporate or union money to pay for their campaign-related expenditures.

In other words, it seems to be tailor-made specifically for the NRA.

patchwork quilt

A "patchwork quilt" of onerous requirements -- get it?

Up until this past week, the NRA opposed the Disclose Act, citing its “byzantine” and “arbitrary patchwork of reporting and disclosure requirements.” Now that they’ve been promised an exemption from these ridiculous demands, the NRA — or, at least, the majority of its leaders — seem ready to roll over and let it pass. (That is, they would neither actively support nor oppose it.) As RedState’s Erick Erickson put it bluntly,

The NRA legislative strategy in the past few years has been to hang everybody else so they can be the last man standing — more interested in maintaining the veneer of bipartisanship than actually standing up for the second amendment.”

Too harsh? I’m not so sure.

In the NRA’s statements on the matter, they explain that:

The most potent defense of the Second Amendment requires the most adamant exercise of the First Amendment. The NRA stands absolutely obligated to its members to ensure maximum access to the First Amendment, in order to protect and preserve the freedom of the Second Amendment. The NRA must preserve its ability to speak. It cannot risk a strategy that would deny its rights, for the Second Amendment cannot be defended without them…. Any efforts to silence the political speech of NRA members will, as has been the case in the past, be met with strong opposition.”

That first sentence, as a standalone, is great and absolutely true. Without the assurance of free speech, one cannot adequately defend and fight for the right to bear arms. The problem appears to be that, in ensuring that they can fulfill their obligation as stated in the latter part of the quote, the NRA seem to think that they are the only group that matters.

Back when the NRA submitted its letter to the Members of Congress re the bill, it realized that “the measure would have undermined or obliterated virtually all of the NRA’s right to free political speech and, therefore, jeopardized the Second Amendment rights of every law-abiding American.” So, assuming that the NRA gets the exemption that they were promised for themselves, what about the National Association of Gun Rights (NAGR), the Gun Owners of America (GOA), the Jews for the Preservation of Firearms Ownership (JPFO), or the Oregon Firearms Federation (OFF), to name a few? What about their right to free political speech? They won’t be exempted from the oppressive restrictions of the Disclose Act. They’re just not big enough. Yet, these are all valid, established organizations with loyal members, fighting for the Second Amendment rights of American citizens. (Plus, they have smaller advertising budgets!) Does this seem fair & just to you?

Of course, while the focus here is on the First Amendment rights of the gun lobby, many other groups representing many other causes will be affected, as well, if the Disclose Act is passed. Pro-Life? Yep. Tax Reform? Uh-huh. Tea Party groups? You betcha. More generally speaking, as a letter from the Chamber of Commerce and 100+ other trade associations points out, the bill is “a threat to the First Amendment rights of businesses across the country.”

I understand the NRA’s concerns, but is this really the best option? Do they really think they can trust Reid, Pelosi, et al. to play fair, even if the NRA gets their exemption? This seems like the first(?) step on a slippery slope to me. Perhaps I am somewhat naive, but I think it would be better for everyone if the NRA united with other 1st & 2nd Amendment organizations and lobbyist groups in a coalition to fight against the Disclose Act. These groups may have their differences, but they should be able put up a solid front against something like this, and they would have the support of Republicans, many Democrats, and Independents alike.

The NRA may be the big boy on the block, but it needs to be reminded 1) to stay true to its principles; 2) to listen to its members; 3) that it isn’t the only concerned party involved; and 4) that it may not be big enough or strong enough to win this fight on its own, so it should be careful not to throw its compatriots under the bus.

"Just Say NO!" buttonThe good news is that grassroots opposition to the Disclose Act appears to be reducing the act’s momentum. Plus, this special NRA deal is getting a lot of people up in arms (pardon the pun) on both sides of the aisle. There is even disagreement within NRA leadership. NRA Board Member Cleta Mitchell stated, “This is not just ‘disclosure.’ It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.” And some anti-gun liberals are really giving the Democrats a hard time about the NRA exemption, too, saying it’s “undemocratic and dangerous”, according to Forbes. (Not surprisingly, union leaders are annoyed, too, since they don’t meet the exemption criteria, either.)

On the other hand, according to the NAGR’s Dudley Brown (via email), there may be enough support for the bill by leadership in both parties that they may try to sneak it past those who would oppose it — e.g., by changing the name or number of the bill and/or attaching it as an amendment to another, unrelated piece of legislation. If it gets to the Senate, at least, Minority Leader Mitch McConnell (R-KY) is determined to block it, since he is a strong advocate of free speech.

If this whole thing ticks you off, too, give the NRA a call at 1-800-672-3888 and tell them, respectfully, that they must renounce this dangerous compromise, denounce the Disclose Act, and get back to core principles, instead of trying to make sure they look adequately bipartisan. Then, call your Representatives and Senators (202-224-3121) and tell them to drop the anti-free speech Disclose Act (HR5175) or face the consequences come re-election time. If we let the First Amendment be eroded away, what is next? Our Constitutional rights are at stake!

The Center for Competitive Politics has a press release on the issue, along with links to their 2-page overview and 19-page comprehensive analysis of the DISCLOSE Act.

UPDATE: Major development occurred before I had time to finish putting this post together. The Disclose Act was scheduled to be voted on in the House this past Friday. But, after complaints from the conservative Blue Dogs (about opposition from business groups) and the Congressional Black Caucus (about the NRA exemption), Pelosi was forced to pull the bill on Thursday night. Majority Leader Steny Hoyer (D-MD) made the actual announcement. As per Politico’s Bresnahan, “Pelosi’s office declined to comment…. Democratic leadership aides said the vote would be rescheduled until next week [i.e., this week], but it is still unclear whether Pelosi [and Van Hollen] will have enough votes to move forward then.”

Bresnahan also indicated that the exemption has been modified to apply to other groups, namely the AARP and the Humane Society, but nothing else I’ve read mentioned this.

Today’s guest post is another tie-in to my earlier post about “Montana Made” law. This one comes from Houston attorney Jeff Matthews, courtesy of the Tenth Amendment Center. Enjoy!


Commerce, Jurisdiction and Firearms Freedom Acts

State efforts to reclaim their jurisdiction are great. But in some respects, the states are still showing signs of apprehension of, and/or undue deference to, the federal government.

Various states have passed legislation, collectively referred to as “Firearms Freedom Acts.” Though they may vary in the details, a common thread in these acts seems to be that a state considers a firearm to be within its jurisdiction if it is manufactured within the state.

Colt Delta Elite 10mm

Colt Delta Elite 10mm

The obvious reason for this common thread is that if a gun entered from another state, the argument that it falls within federal jurisdiction under the Interstate Commerce Clause can be invoked. However, such an argument would be incorrect.

Congress has the power to regulate interstate commerce. Just because a gun crosses state lines does not mean it did so as a part of commerce. Many people move from state to state and take their belongings, including guns, with them. This is not commerce.

Secondly, there is a temporal issue raised by assuming any gun that has come from another state is within the ambit of federal regulatory jurisdiction. As stated, the federal government is empowered to regulate interstate commerce. But what if a gun entered a state as part of interstate trade in say, 1980, and here it is 2010? The gun is no longer the subject of any act of interstate commerce and has not been for 30 years. It is specious, at best, for anyone to believe that any product that ever was the subject of interstate commerce forever remains the subject of federal regulatory control.

Jurisprudence has evolved from asserting federal jurisdiction over “commerce among the several states,” as intended, to anything “affecting commerce among the several states.” There are legitimate reasons for the desire of the federal government to try to extend the reach of its jurisdiction in this manner. There are many scenarios in which purely intrastate activities can thwart the ability of Congress to exert its authority over interstate commerce. The possibilities are so many that even the founders might admit that intrastate activities can effectively frustrate the original intent to confer on Congress the power to regulate interstate commerce.

However, just because the federal government might experience frustration in wielding the power conferred on it does not mean the federal government can unilaterally change the construct of its power. In such cases, amendment is the process which was designed to remedy such problems.

What the federal government has done is to effectively re-write the Constitution to expand its authority and dispense with its burden to show it is operating within the legitimate confines of its authority. By construing Congress’ power to regulate things which affect interstate commerce, Congress does not have to concern itself with whether the thing it seeks to regulate is actually the subject of interstate commerce.

For example, some scholars have noted that Congress could not effectively regulate things if it had to become entangled in the almost impossible process of proving that the thing it seeks to regulate was the subject of interstate commerce. In short, a person seeking to avoid federal regulation could easily frustrate regulators by demanding, “Prove these carrots, shoes, flowers, etc. came from within another state.” In addition, what if XYZ Corp. produces widgets in Alabama and is moving them to its warehouse in Mississippi, where it will offer them for sale there? Is movement, without a transfer of title, commerce? Whether it is, should be, or should not be, here, we can easily see the problem is complex.

Undeniably, these issues would put a heavy burden on the federal government if it had to comply with the law as written, since, as the proponent asserting its jurisdiction, the burden is always on it to prove by preponderance every fact essential to its claim that it has jurisdiction. Without being able to trace things and to know the specifics of the transactions, if any, in which they are engaged, the federal government would lose its case.

But isn’t that what due process is all about? If a person has a claim against another person, or if the government has a claim against another person, common notions of due process have always held that the former has the burden of proof. The mere fact that the burden of proof is difficult, if not impossible, to meet in certain cases should not offer an excuse to ignore the burden and re-write the rules without following proper procedures.

Constitution with quill

U.S. Constitution

In summary, to the extent the federal government might have difficulty in a great many cases to demonstrate its jurisdiction over things alleged to be the subject of interstate commerce, this does not mean the federal government, in the absence of Constitutional amendment, can simply restate its jurisdiction to make it extend to all things which affect interstate commerce. Had this been the scope of power granted to it, the Constitution could have been written that way. But it was not.

In reclaiming their proper jurisdiction, state legislators need to take heed that their role is to jealously guard their jurisdiction and to protect it from federal overreach. By so doing, the goal of protecting their citizens from federal excesses is served.

Accordingly, state legislators need to make sure they do not assume significant portions of their jurisdiction away. In the instance of Firearms Freedom Acts, there is no reason to assume that if a gun originates from another state, it is automatically the subject of federal jurisdiction under the Interstate Commerce Clause. The point of origin of a thing does not mean it is part of commerce.

Therefore, there is no logical reason why states enacting Firearms Freedom Acts should claim jurisdiction over only those guns which are manufactured in their states. States should be exercising jurisdiction over guns if (1) they are in the state, and (2) they are not currently engaged in a transaction that constitutes commerce between a person of the state and a person of another state.

*Jeff Matthews is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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As a follow-up of sorts to my last post, I have a guest post from my friend, Jamie Davis, of “Durable Faith” blog.


Was Jesus a Sword Toting Conspiracy Theorist?

Replica of ancient Roman sword (gladius)

Replica of ancient Roman sword (gladius)

Jesus was actually pretty clear on self-defense, telling his disciples: “If you don’t have a sword, sell your cloak and buy one…” Many Christians wonder, why would he say that? Doesn’t he know that a child could get ahold of that sword and hurt him or herself? Shouldn’t Christians and well-informed citizens want to control dangerous weapons so that our society stays civil?

Short answer, no! Christians should advocate the moral responsibility of civil citizens to arm themselves and to teach proper gun (or sword) handling to their children. Consider that the states with the least restrictive gun laws in the US, North Dakota, Vermont, also have the lowest crime rates. Consider the drop in violent crime in Florida when gun laws were loosened.

Florida adopted a right-to-carry law in 1987. Between 1987 and 1996, these changes occurred:

Florida United States
homicide rate -36% -0.4%
firearm homicide rate -37% +15%
handgun homicide rate -41% +24%

Consider that Switzerland mandates arms training for its adult male citizens and has them keep their assault weapons at home. Not only do they have a low crime rate, they have managed to avoid significant impact during the past two world wars, even though the wars were fought on their very doorstep.

How, then, can anyone with intellectual honesty even suggest that gun control makes anyone but criminals or governments with criminal intent safer?

Take a moment to consider the Historical Human Cost of “Gun Control”:

Historical Human Cost of Gun Control

The Genocide Chart (abbreviated)

(For full version of “The Genocide Chart”, go here.)

In closing, I’ll just mention Jesus clearly taught that people are evil. In fact, Jesus was a conspiracy theorist, as is clear in this passage from Mt 22:18 → ”But Jesus, knowing their evil intent, said, “You hypocrites, why are you trying to trap me?”

I think we should reject the feel good label “Gun control”, so that the debate is more clear and more honest; instead, let’s just call it victim disarmament, because that is what it is.