Daily Archives: March 5, 2020

Joshua Feinzig and Joshua Zoffer: A constitutional case for gun control

Was Stevenss linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEMEmore than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevenss reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalias analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses.

Finally, it is not enough to consider keep and bear arms in a vacuum. The Second Amendments operative clause refers to the right of the people. We conducted another search in COFEA for documents that referenced arms in the context of rights. About 40 percent of the results had a militia sense, about 25 percent used an individual sense, and about 30 percent referred to both militia and individual senses. The remainder were ambiguous. With respect to rights, there was not a dominant sense for keeping and bearing arms. Here, too, an ordinary citizen at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights.

Based on these findings, we are more convinced by Scalias majority opinion than Stevenss dissent, even though they both made errors in their analysis. Furthermore, linguistic analysis formed only a small part of Scalias originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. (We hope to publish this research, which also looked at other phrases in the Second Amendment, such as the right of the people, in an academic journal.)

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The Mysterious Meaning of the Second Amendment - The Atlantic

Photo by Gage Skidmore courtesy of Creative Commons CC BY-SA 2.0; image composite by A1F staff

Former Vice President Joe Biden and Sen. Bernie Sanders are effectively in a two-horse race for the Democratic Partys presidential nomination after the results of Super Tuesday.

After a dismal showing, former New York City Mayor Michael Bloomberg suspended his campaign and endorsed Biden. Sen. Elizabeth Warren remains in the race, but has yet to win a single contest, including her home state of Massachusetts.

Now that the race is down to Biden and Sanders, the two are vying for the partys nomination, but their stances on the Second Amendment are, according to their public positions, almost identical.

Both support expanding background checks, red-flag laws and complete bans of the most commonly owned semi-automatic rifles in the country, which each improperly labels as assault weapons on their respective campaign websites. This is just the beginning of their anti-gun agendas.

To take it a step further, Biden explicitly supports a repeal of the Protection of Lawful Commerce in Arms Act. Biden believes manufacturers should be held liable for the acts of criminals and that law-abiding citizens should pay the price, the cost of which is the ability to protect themselves from those very same criminals.

Biden has now also secured several endorsements from former candidates, including Michael Bloomberg, Amy Klobuchar and Pete Buttigieg. He also recently called upon failed presidential candidate Beto ORourke to take care of the gun problem on the eve of Super Tuesday. ORourke, a former congressman from Texas, made headlines in a September debate when he said, Hell yes, were going to take your AR-15, your AK-47.

Sanders, meanwhile, has also made it clear that he is an anti-gun opportunist who will cave to the demands of his radical base, no matter how extreme their stances may be. His campaign website lists a plethora of anti-gun measures he would take if elected. Perhaps most concerning among them is his buyback program, a plan to confiscate popular semi-automatic firearms.

Both Biden and Sanders also vow, in no uncertain terms, to take on one of the oldest civil-rights organizations in the world: the NRA. In fact, they both display their contempt for the organization almost immediately on their gun-safety pages.

Whoever the Democrats nominee ultimately is (including an improbable comeback from Warren, who has a plan to restrict your rights), they see the Second Amendment as a problem that needs to be solved.

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Remaining Democrat Candidates All Oppose the Second Amendment - America's 1st Freedom

In late January, thousands of pro-gun activists descended on Richmond, Virginia, to protest a package of gun reform bills advancing through the state General Assembly. Many of them were armed. The specter of a massive open carry demonstration was difficult for anyone to ignore, but the day was also significant because of the people not in attendance outside the state Capitol grounds.

Fearing violence, untold numbers of counter-protesters diverted their plans to advocate for legislation on the same streets as the pro-gun activists. Among those who sat it out that day were members of a student group advocating for undocumented immigrants and gun reform advocates who had planned to hold a vigil in memory of gun violence victims. In their absence, the loudest voices in the proverbial room were those in support of gun rights.

Some legal commentators found the dynamic vexing and questioned if the protest was a healthy picture of free speech and debate. Garrett Epps, a professor of constitutional law at the University of Baltimore, was one of many to surface concerns about the First Amendment rights of the unarmed. In The Atlantic, he declared, The right to bear arms in political debate is not the power to speak for oneself; it is, at least implicitly, the power to silence others. The late Supreme Court Justice John Paul Stevens acknowledged this clash of rights in a dissent from 2010. Your interest in keeping and bearing a certain firearm, he wrote, may diminish my interest in being and feeling safe from armed violence.

Below, we look at the free speech implications of open carry demonstrations, and whether officials can regulate guns in protest settings to foster free speech.

Is there a First Amendment right to attend a protest free of guns?

The short answer is no, at least not right now. While some may feel that armed protesters trample on the speech rights of others, the reality is that no court would currently hold that carrying guns openly at a demonstration violates First Amendment rights to free expression and political assembly.

A First Amendment lawyers argument against open carry at protests would go something like this: Firearms violate the speech rights of unarmed protesters because they chill expression through intimidation.

But this reasoning suffers from two major problems. For one thing, freedom of speech protects individuals from government intrusion on expression, but in armed protest settings, the government is not directly involved in silencing anyone. Its not the government carrying the guns, said Timothy Zick, a law professor at William and Mary Law School who has written extensively on the issue. Indirectly, yes, the government allows people to carry guns. But its the individuals decision to carry it.

Moreover, chills on expression, which are not outright bans on speech, violate the First Amendment only under certain circumstances. Zick said, It can be a struggle to deal with the legal concept of chill versus the human concept of it.

For a chill on expression to cross over into a free speech violation, the threatening consequence of speech has to be immediate like getting arrested for your dissenting speech, losing your job for your political views, or being shot at a protest. It has to be some kind of tangible, compulsive, coercive impingement on you, said Zick. Ones own perception that speech could get them into trouble is called subjective chill, and the Supreme Court has held that First Amendment claims based on that definition are dead on arrival.

As a result, a court would likely find no immediate threat to people who dont attend protests because of open carry practices. As Zick noted, Your willingness to rally amongst guns depends heavily on what you believe about guns. Not everyone thinks that guns are inherently dangerous, and open carry laws by themselves dont guarantee that people will use their firearms in a dangerous way. The U.S. Court of Appeals for the Fifth Circuit relied on this reasoning in a 2018 case about concealed carry in public university classrooms in Texas. A group of University of Texas professors argued that the presence of weapons in class would chill their First Amendment academic freedoms. But the court found they were choosing to self-censor their speech based on the hypothetical future decisions of students.

Do some scholars take exception to the current state of the law?

Some legal experts disagree with the jurisprudence and believe that guns in public spaces are incompatible with a functioning democracy. In a paper arguing that the Second Amendment right should exist only in the privacy of ones home, Darrell Miller of Duke Law School argued, The presence of a gun in public has the effect of chilling or distorting the essential channels of a democracy. He added, Valueless opinions enjoy an inflated currency if accompanied by threats of violence.

Likewise, Mary Anne Franks of the University of Miami has argued that, under the sway of the gun lobby, the Supreme Court has transformed the Second Amendment into a superright one with the ability to override others with the power to cancel out the freedom of speech by intimidating people into silence. This chilling effect, she noted in her book The Cult of the Constitution, is felt most acutely by the least powerful members of society.

If theres no First Amendment case against armed protest, can open carry events still be restricted?

Governments are far from helpless to stop people from bringing guns to protests. There are many different gun regulations we could use that preserve both Second Amendment rights and free speech rights, Zick said.

First, its important to note that the Supreme Court has itself contemplated limits on the right to bear arms, including bans on guns in sensitive places. Many of these locations, including Capitol grounds and university campuses, are common protest sites. Local governments can grant protest permits on the condition that the gathering is free of firearms without running afoul of the Second Amendment. Similarly, local officials can require guns to be unloaded or restrict the types of firearms protesters may carry.

Furthermore, its worth remembering that the Second Amendment does not grant gun carriers the right to commit crimes. Existing criminal laws prohibit brandishing or discharging firearms outside of the context of self-defense. As The Trace has reported, states could enforce very old laws that penalize people for going armed to the terror of the public. And many states, including those that permit open carry, have banned paramilitary activity for over a century. These laws prohibit private militias from assembling and holding drills in public. Virginia recently relied on its own anti-paramilitary statute to prevent some groups at the 2017 Charlottesville rally from protesting with guns in the future. (A bill currently making its way through the General Assembly would amend that law with language prohibiting armed persons from assembling with the intent to intimidate others.)

Still, this face-off of rights is far from over. There are more states that permit open carry, and more people are starting to exercise that right, said Zick. Armed protest is going to be part of the protest landscape.

The law in this area is still developing, and courts will likely consider how armed protests play out in real life. If violence transpired at future open carry rallies, he predicted that might bolster a First Amendment claim that weapon-toting demonstrators are limiting others free speech. I think it would be difficult for any judge, whether they admitted it or not, to ignore news reports of mayhem in the streets.

Lower courts will also have to follow new pronouncements from the Supreme Court, which has yet to establish a Second Amendment right to carry in public. But Zick believes that will change. I think the writing is on the wall, he said.

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When Protestors Carry Guns, Does It Impede Others Free Speech? - The Trace

On Thursday, following the uproar that exploded on Wednesday after Senator Chuck Schumer (D-NY) issued an apparent threat targeting Supreme Court Justices Neil Gorsuch and Brett Kavanaugh at an abortion activist rally, prompting an avalanche of criticism launched toward Schumer for his remarks, actor James Woods warned that attitudes like Schumers were the precursor to something far more dangerous, and precisely the reason that the Second Amendment exists.

Woods took note of the unprecedented step Chief Justice John Roberts took by issuing a statement condemning Schumers remarks. Woods tweeted, When the Chief Justice of the Supreme Court must take the extraordinary step of admonishing a United States Senator from targeting the lives of named Justices, we are in civil war territory. The Founding Fathers wrote the Second Amendment for violent haters like Chuck Schumer.

As The Daily Wire reported, Schumer had ranted, Republican legislatures are waging a war on women, all women, and theyre taking away fundamental rights. I want to tell you Gorsuch; I want to tell you Kavanaugh; you have released the whirlwind and you will pay the price. You wont know what hit you if you go forward with these awful decisions.

Roberts fired back:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.

Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

That prompted a spokesman for Schumer to rip Roberts, accusing him of being influenced by the political Right, saying, For Justice Roberts to follow the right wings deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsberg last week, shows that Justice Roberts does not just call balls and strikes. The spokesperson continued by claiming, It was a reference to the political price Rs will pay for putting them on the court and a warning that the justices will unleash major grassroots movement on the issue of reproductive rights against the decision.

Woods has been clear about the necessity of the Second Amendment before; in February 2018 he answered a tweet from a leftist who stated on Twitter that they supported a violent overthrow of Trump. Woods responded, And this is why we have a Second Amendment, and why the Founding Fathers stated specifically that the rights therein shall not be infringed.

Woods is clearly conservative, but his dedication to the American system supersedes partisan politics. Despite the fact that he strongly opposed former President Barack Obama, in September 2016 he noticed a tweet stating We must kill and eat Obama. Woods alerted the Secret Service, writing,.@SecretService You might be interested in this person

As The Wrap reported, Woods later tweeted, I may disagree with #Obama on virtually everything. To threaten his life allegedly in jest is appalling and a federal felony @SecretService.

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James Woods Blasts Schumer: 'The Founding Fathers Wrote The Second Amendment For Violent Haters Like Chuck Schumer' - The Daily Wire

The Union Cabinet, chaired by the Prime Minister, Narendra Modi has approved the Companies (Second Amendment) Bill, 2019 to amend the Companies Act, 2013. The Amendment Bill, inter alia, would enable the listing of Indian companies on stock exchanges in foreign jurisdictions.

The listing of Indian companies in foreign stock exchanges is expected to increase the competitiveness of Indian companies in terms of access to capital, broader investor base and better valuations. The framework for enabling such listing under the foreign exchange and securities laws would befinalised by the Ministry of Finance in consultation with Ministry of Corporate Affairs, Reserve Bank of India and the Securities and Exchange Board of India.

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Companies Second Amendment Bill 2019 To Enable Listing Of Indian Companies On Exchanges In Foreign Jurisdictions - Business Standard

The Left has long lost this debate, but they keep trying to relitigate it on the campaign stump. The Second Amendment grants the individual right to keep and bear arms. That was the landmark D.C. vs. Hellerdecision, though it applied only to federal enclaves. The McDonald v. Chicago decision extended this right to the states proper. But the Left is obsessed with the militia portion of the amendment: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

The Atlantic has a good piece about this whole debate, including an analysis of the opinions from the late Justices Antonin Scalia and John Paul Stevens on Heller. The publication explained that they used two databases Corpus of the Founding Era American English (COFEA) which has 140 million words from documents between 1760-1799 and Corpus of Early Modern English, a massive text bank based on one-billion words British English from 1475 and 1800, to analyze their opinions. To no ones surprise, Scalias majority opinion was more grounded in historical fact than Stevens, though both had inaccuracies. Still, even in the afterlife, Scalia is still right for the most part (via The Atlantic):

Scalia concluded that the phrase bear arms unequivocally carried a military meaning only when followed by the preposition against. The Second Amendment does not use the word against. Therefore, Scalia reasoned, the phrase bear arms, by itself, referred to an individual right. To test this claim, we combed through COFEA for a specific pattern, locating documents in which bear and arms (and their variants) appear within six words of each other. Doing so, we were able to find documents with grammatical constructions such as the arms were borne. In roughly 90 percent of our data set, the phrase bear arms had a militia-related meaning, which strongly implies that bear arms was generally used to refer to collective military activity, not individual use. (Whether these results show that the Second Amendment language precludes an individual right is a more complicated question.)

Further, we found that bear arms often took on a military meaning without being followed by against. Thus, the word against was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.

Next, we turn to Justice Stevenss dissent. He wrote that the Second Amendment protected a right to have and use firearms only in the context of serving in a state militia. Stevens appears to have determinedthough his exact conclusion is somewhat unclearthat the phrase keep and bear arms was a unitary term of art. Such single linguistic units, called binomials or multinomials, are common in legal writing. Think of cease and desist or lock, stock, and barrel. As a result, Stevens concluded, there was no need to consider whether keep arms had a different meaning from bear arms. Therefore, he had no reason to determine whether keep arms, by itself, could refer to an individual right.

Was Stevenss linguistic intuition correct? No.

[]

Based on these findings, we are more convinced by Scalias majority opinion than Stevenss dissent, even though they both made errors in their analysis. Furthermore, linguistic analysis formed only a small part of Scalias originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings.

Oh, and as for the militia aspect of all of this, well, it looks like the Second Amendment was written in a way to show that gun ownership was applicable to the military, or militia at the time, and individual use. The Washington Free Beacons Stephen Gutowski noted this part of the article as well:

So, yeahthis really hasnt been a debate since 2008, when Heller was decided, but keep hitting against that wall, liberal America.

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Debate is Over Concerning This Part of the Second Amendment? - Townhall

WASHINGTON, D.C. U.S. Sen. Mike Enzi, R-Wyo., introduced two amendments to an energy bill this week that would help increase the opportunities for locating and processing rare earth elements in Wyoming.

The first amendment would help ensure that Wyomings rare earth industry is included in a report the Department of Energy (DOE) sends to Congress. The second amendment would require DOE to study the importance of rare earth minerals to our national security.

Rare earth elements are important to our countrys energy independence and are crucial in meeting our technological needs from smartphones and televisions to wind turbines and jet fighter engines, Enzi said in a news release. These amendments would help highlight the importance of rare earth elements and the role Wyoming can play in mining and producing them.

According to the Wyoming Mining Association, Wyoming is home to some of the highest quality rare earth deposits in the country.

Enzi offered both amendments to the American Energy Innovation Act introduced by U.S. Sen. Lisa Murkowski, R-Alaska, which is being considered on the Senate floor and aims to ensure the U.S. remains a global energy leader.

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Enzi introduces amendments to encourage production of rare earth elements - Wyoming Tribune