From NBCNews: Assault Weapons Not Protected by Second Amendment, Federal Appeals Court Rules

This will very likely end up in the Supreme Court.

- Click here for the article.

Maryland's ban on 45 kinds of assault weapons and its 10-round limit on gun magazines were upheld Tuesday by a federal appeals court in a decision that met with a strongly worded dissent.

In a 10-4 ruling, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, said the guns banned under Maryland's law aren't protected by the Second Amendment.

"Put simply, we have no power to extend Second Amendment protections to weapons of war," Judge Robert King wrote for the court, adding that the Supreme Court's decision in District of Columbia v. Heller explicitly excluded such coverage.

Maryland Attorney General Brian Frosh, who led the push for the law in 2013 as a state senator, said it's "unthinkable that these weapons of war, weapons that caused the carnage in Newtown and in other communities across the country, would be protected by the Second Amendment."

"It's a very strong opinion, and it has national significance, both because it's en-banc and for the strength of its decision," Frosh said, noting that all of the court's judges participated.

Judge William Traxler issued a dissent. By concluding the Second Amendment doesn't even apply, Traxler wrote, the majority "has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms." He also wrote that the court did not apply a strict enough review on the constitutionality of the law.

"For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, Maryland's law clearly imposes a significant burden on the exercise of the right to arm oneself at home, and it should at least be subject to strict scrutiny review before it is allowed to stand," Traxler wrote.

National Rifle Association spokeswoman Jennifer Baker said, "It is absurd to hold that the most popular rifle in America is not a protected 'arm' under the Second Amendment." She added that the majority opinion "clearly ignores the Supreme Court's guidance from District of Columbia v. Heller that the Second Amendment protects arms that are 'in common use at the time for lawful purposes like self-defense.'"

From Vox: Trump won. But so did marijuana legalization, gun control, and minimum wage increases.

An odd result since these are all liberal proposals.

- Click here for the story.

By all accounts, the biggest races on Election Day were a total disaster for Democrats. Donald Trump won. Republicans kept Congress, holding back a Democratic attempt to retake the Senate. And down the ballot, the results weren’t much better for the party: Democrats overall lost governors’ races, although the results were more mixed in state legislatures.

But not all is doom and gloom. While Democrats lost big, liberals won some of the big initiatives that were on statewide ballots. It wasn’t a total sweep — several states, for example, affirmed the death penalty — but there were gains on some issues, including marijuana legalization, minimum wage, and gun control.

The full results paint a much more mixed picture than the top-ballot results suggest: The Democratic Party got clobbered, but some of the major policies Democrats support also won big.

"The Eleven States of Violence"

That's the title Andrew Sullivan gave to this study in Tufts Magazine which tries to uncover the roots of the different responses to violence across the states. The approach should sound familiar to 2306 students - its similar to the approach to political culture we looked at in the beginning of the class. Different areas respond in different ways, and these differences can be traced back to the circumstances of the settlement in each area:

. . . the incidence of violence, like so many salient issues in American life, varies by region. Beyond a vague awareness that supporters of violent retaliation and easy access to guns are concentrated in the states of the former Confederacy and, to a lesser extent, the western interior, most people cannot tell you much about regional differences on such matters. Our conventional way of defining regions—dividing the country along state boundaries into a Northeast, Midwest, Southeast, Southwest, and Northwest—masks the cultural lines along which attitudes toward violence fall. These lines don’t respect state boundaries. To understand violence or practically any other divisive issue, you need to understand historical settlement patterns and the lasting cultural fissures they established.

The original North American colonies were settled by people from distinct regions of the British Isles—and from France, the Netherlands, and Spain—each with its own religious, political, and ethnographic traits. For generations, these Euro-American cultures developed in isolation from one another, consolidating their cherished religious and political principles and fundamental values, and expanding across the eastern half of the continent in nearly exclusive settlement bands. Throughout the colonial period and the Early Republic, they saw themselves as competitors—for land, capital, and other settlers—and even as enemies, taking opposing sides in the American Revolution, the War of 1812, and the Civil War.

There’s never been an America, but rather several Americas—each a distinct nation. There are eleven nations today. Each looks at violence, as well as everything else, in its own way.

Texas is in four distinct regions. We are in the Deep South. Here's what that means:

Established by English slave lords from Barbados, Deep South was meant as a West Indies–style slave society. This nation offered a version of classical Republicanism modeled on the slave states of the ancient world, where democracy was the privilege of the few and enslavement the natural lot of the many. Its caste systems smashed by outside intervention, it continues to fight against expanded federal powers, taxes on capital and the wealthy, and environmental, labor, and consumer regulations.

Sullivan argues that this map proves that the US must be a federal system if it is to survive. There are too many differences within the nation for it to survive as a unitary system.

Why did gun control fail in the Senate? Intensity, Demographics, and Social Networks

A Monkey Cage writer summarizes why 90% support for gun control measures - the background checks anyway - was not sufficient to get the proposal passed. This tells us alot about what does and does not drive the political process.

What doesn't? Presidential Rhetoric:

I will not linger on dubious claims by Stuart Stevens, Maureen Dowd and others that President Obama should have been able to win 60 votes via more adept arm-twisting, deal-making and speechifying. Pundits’ abiding belief in Presidential omnipotence seems immune to the evidence assembled by scholars like George Edwards and Frances Lee that Chief Executives’ ability to affect the votes cast by Members of Congress is limited and that Presidents’ embrace of a policy may repel legislators as much as it attracts them.

Intensity matters, but it is an insufficient explanation:

Certainly, elected officials hear far more from the gun rights side of the debate, even when it is badly outnumbered. There may well be more passion on the pro-gun side. Yet in politics it is a mistake to simply infer greater intensity of concern from greater mobilization. Two additional factors should be examined that may help explain why pro-gun advocates are so much better able to mobilize supporters and win the day on Capitol Hill: the demographic characteristics of those on each side of the debate and differences in the extent to which their social networks and activities facilitate their collective action.

Demographic Characteristics:

Polls tell us something about the characteristics of gun rights supporters and gun owners specifically. If we look at these categories, we see that they are disproportionately white, male and old. Disproportionately white, male and old is a description that fits the Senate and,to a lesser degree, most other American political elites quite well. For example campaign contributors are disproportionately white male, and old too. Gun rights supporters are also more likely to be registered to vote than gun control advocates. So from this standpoint the cause of gun rights gets more of a hearing because it appeals to the kind of citizens who are already comfortable and used to participating in politics.

And Social Networks:

People often go hunting and target-shooting in groups. Gun enthusiasts assemble at gun shows. There are businesses that cater to gun owners; firearms and ammunition manufacturers and the operators of target ranges and gun shows. It is well-known that firms find it easier to build effective lobbies than do large groups of citizens, but beyond that gun owners’ social activities facilitate organizing. They are embedded in social networks of people with similar views and simply by socializing, engaging in recreational activities or reading publications devoted to their hobbies, they may learn about political efforts that at least some of them are predisposed to support. It’s not an accident that many of the most successful social movements in American history from abolition to Prohibition and the Civil Rights Movement were based in churches. These campaigns piggy-backed on pre-existing social organizations and communities rather than building connections from scratch.

Gun control proponents are far too diffuse to be as effective:

By contrast, gun control supporters have no shared social activities, no common identity and no companies that cater to them. Their jobs don’t bring them together. Unlike gun rights advocates’ they don’t find and stay in touch with each other without a conscious and sustained effort to do so. Under these conditions, it is not surprising to find far more effective mobilization of sentiment on the gun rights side. So even if there was significant intensity of feeling on the part of a sizable minority of gun control advocates,(say 10% of the 90% favoring background checks) we should expect them to have greater difficulty in channeling those feelings and building durable political organizations.

More than most any other story I've come across in recent years, this one best explains the ability of strong cohesive groups to be more effective that public opinion. We might consider changing our defitnition of democracy from rule of the people to rule of groups - or factions as Madison might put it.

Why did the Senate vote down background checks for gun purchases if 90% of the population favored it?

A handful of political commentators try to figure that out, click here.

And click here for the source of the 90% figure.

More evidence that the Senate is not a democratic institution

This is a point we make a lot in 2305 (and it applies to 2306 as well). The Senate was designed to be removed from the direct preferences of the electorate, which was done partly by connecting it to states which are then treated as equal political entities. The six year overlapping terms does much of the rest.

So it an undemocratic institution, which some commentary about the gun control vote noted. Senators from smaller states had more sway over the amendments tha those from larger states.

Here's one take:

The Manchin-Toomey bill received 54 aye votes and 46 nay votes. That is to say, a solid majority of senators voted for it. In most legislative bodies around the world, that would have been enough. But it wasn’t a sufficient supermajority for the U.S. Senate.

Of the senators from the 25 largest states, the Manchin-Toomey legislation received 33 aye votes and 17 nay votes — an almost 2:1 margin, putting it well beyond the 3/5ths threshold required to break a filibuster. But of the senators from the 25 smallest states, it received only 21 aye votes and 29 nay votes.

Another points out that the Senators who voted for the amendments represented almost 2/3rds of the population:

If you assume, for sake of argument, each senator represents half of his or her state’s population, then senators voting for the bill represented about 194 million people, while the senators voting against the bill represented about 118 million people. That’s getting close to a two-thirds majority in favor of the measure.

In a legislative body that didn’t give sparsely populated rural states the same representation as densely populated urban ones—and in which a minority of representatives lacked the power to block debate indefinitely—those kinds of numbers would be more than enough to pass something like the background check proposal.

A third provides graphical evidence of the ratio between the largest and smallest states over time:

And the smallest share of the electorate that can comprise a majority in the Senate:

Gun measures filibustered in the Senate

The US Senate filibustered a variety of amendments to the gun control bill, though a couple other amendments seem cleared for a vote.

The bill is S. 649, the Safe Communities, Safe Schools Act of 2013. Click here to find the bill on Thomas.


The NYT has a graphic that walks through the amendments.

The ones that failed would have expanded background checks for online sales and guns shows and substituted checks for enforcement mechanisms for the mentally ill, banned assault weapons and limited the size of magazines, made straw pruchases a federal crime, mandated that concealed firearms licenses from any state be accepted in all states, and ensure that only judges could deem veterans unfit to own a gun due to mental incompetence.

The two that passed today are meant to improve mental health programs and impose penalties on states for releasing gun ownership data.

Gun control measures split both parties

It seems to be unusual issue - not like others where the parties line up against each other.

From the NYT:

Deep divisions within both parties over a bipartisan measure to extend background checks for gun buyers are threatening its chances as the Senate this week begins debating the first broad gun control legislation in nearly 20 years.

In spite of a vote last Thursday in favor of debating new gun measures, some Democrats who are facing re-election next year in conservative states have already said they will not vote for the background check measure offered by Senators Patrick J. Toomey, Republican of Pennsylvania, and Joe Manchin III, Democrat of West Virginia, forcing Democrats to look desperately across the aisle to fill the gaps.

Republicans, in the meantime, are bitterly torn between moderates who feel pressure to respond to polls showing a majority of Americans in support of some new gun regulations and conservatives who are deeply opposed to them.

Cops in schools = kids in jail

File this under policy evaluation.

The NYT reports on a point made previously in class, that putting police officers in schools makes it more likely that disciplinary issues will turn into criminal issues. This is likely because that is what police officers do - they act on what they perceive to be criminal activity. Placing police officers in school in order to protect the school from mass shootings has an unintended effect.

As school districts across the country consider placing more police officers in schools, youth advocates and judges are raising alarm about what they have seen in the schools where officers are already stationed: a surge in criminal charges against children for misbehavior that many believe is better handled in the principal’s office.

Since the early 1990s, thousands of districts, often with federal subsidies, have paid local police agencies to provide armed “school resource officers” for high schools, middle schools and sometimes even elementary schools. Hundreds of additional districts, including those in Houston, Los Angeles and Philadelphia, have created police forces of their own, employing thousands of sworn officers.

Last week, in the wake of the Newtown, Conn., shootings, a task force of the National Rifle Association recommended placing police officers or other armed guards in every school. The White House has proposed an increase in police officers based in schools.

The effectiveness of using police officers in schools to deter crime or the remote threat of armed intruders is unclear. The new N.R.A. report cites the example of a Mississippi assistant principal who in 1997 got a gun from his truck and disarmed a student who had killed two classmates, and another in California in which a school resource officer in 2001 wounded and arrested a student who had opened fire with a shotgun.

Yet the most striking impact of school police officers so far, critics say, has been a surge in arrests or misdemeanor charges for essentially nonviolent behavior — including scuffles, truancy and cursing at teachers — that sends children into the criminal courts.

Senators reach an agreement on gun background checks

Report from the Washington Post. Not surprisingly, the deal was brokered by a Democrat from a red state and a Republican from a blue state.

Catching up on gun control

There's been lots under the bridge since we last covered this. Action has occurred on all levels of government.

The US Senate is set to begin discussing the bill, and the Washignton Post is reporting that a Republican led filibuster attempt might be thwarted:

The Senate will hold the first key procedural vote on a bill to curb gun violence Thursday as more than a half-dozen Republicans announced that they will join with Democrats to stop any attempt to block popular legislation drafted in response to a deadly shooting at a Connecticut elementary school.

The vote would formally start the the most wide-ranging and ambitious battle over gun control in 20 years.

In scheduling the vote, Senate Majority Leader Harry M. Reid (D-Nev.) said he doesn’t know if he has sufficient support to proceed to further debate on the bill. Regardless, “we’re going to vote on this anyway,” he said. “It may take a little time, but the American people deserve a vote.”

Senate procedural rules require Reid to secure at least 60 votes to move ahead with the legislation. Republican support to proceed doesn’t guarantee final passage of the bill — just that the Senate can actually begin formal debate. Getting at least 51 senators to support a final bill will prove difficult, as the politics of the issue are especially tricky for several Senate Democrats seeking reelection in 2014 in rural and Midwestern states.

If the vote to proceed is successful, the Senate is expected to spend the remainder of April debating and voting on a bill that would expand the gun background-check system, make gun trafficking a federal crime for the first time and provide $40 million in federal funding to help revamp school security programs. Senators of both parties would be permitted to introduce related amendments, including plans to establish an online portal for background checks, and to provide more federal funding for mental health programs assisting military veterans of the wars in Iraq and Afghanistan. Reid has also promised votes on proposals to ban military-style assault weapons and to limit the size of ammunition clips, but supporters expect those amendments to fail.

More gun owners claim self-protection as the reaosn why they own guns despite the fact that violent crime is decreasing. Why?

This graph in the Pew Center site popped out at me while I was putting together the previous post. Here's the related study:





But this graph points out that violent crime is decreasing the in the US over roughly the same period of time described above:




This suggests that there is less reason for people to justify using protection as a reason to own a gun since there is less likelyhood that one will be affected by violent crime. Of course this doesn't mean that violent crime doesn't happen and one might reasonably choose therefore to own a gun for protection, but the trend lines do not jive. Fewer violent crimes suggest that protection should be less a factor used to justify gun ownership.

But this assumes that people are basing their decisions about why to own a gun based on unvarnished facts. Something is likely convincing people that violent crime is a bigger problem than it really is. There may be certain groups that are advantaged by convincing people that crime is more prevalent than it actuall is. It is also commonly pointed out that local news tends to hype local crime since it tends to attract viewers. I'll surf around and look for attitudes about the prevalence of crime and see if it conflicts with actual crime rates, but this might lend support to the argument below that the information we receive about factual matters is distorted.

In fact it might be worth investigating who or what best determines attitudes about crime.

From the Huffington Post: NRA For First Graders?

Click here for a video about proposed legislation in Missouri that would require first graders to take an NRA approved gun safety class. Its part of the NRA's Eddie Eagle program. Critics argue that the purpose is to market guns to kids. Maybe, but I think Nerf does a far better job of that.

Will there be a challenge to the constitutionality of New York's recent assault weapons ban?

I'm finishing up grading week 2's assignment on recent Supreme Court decisions about gun control, and I ran across the following story about possible constitutional claims against the state of New York's recently passed laws banning assault weapons.

Pro-gun-rights groups filed notice with the state Tuesday of their intention to sue over Gov. Cuomo’s new assault weapons ban.

The New York State Rifle & Pistol Association and other groups made the filing with the state Court of Claims, arguing the new gun control law violates the rights guaranteed by the U.S. and state constitutions.

The point of McDonald v Chicago was to expend the reach of Second Amendment protections. Prior the decision, the Second Amendment protected gun owners from the national government, afterwards a gun owner could use the amendment to limit the state and local governments. It is unclear whether this applies to assault rifles and magazine sizes and other such matters, but we may find out soon. I think its appropriate to point out that activities allowed in the McDonald case seem to be underway. 

Right to Carry

Thanks to the student who submitted this story about a man who walked through a JCPenney with an assault rifle.




The law allows him to do it, and he didn't shoot it, but would you feel comfortable with people who do similar things? And does your comfort level matter? As far as I can tell, there has been no Supreme Court case clearly stating that the second amendment applies to carrying weapons where you wish. So the right to do so might still be up in the air.

"Dangerous and unusual" weapons

We're having fun in some classes trying to figure out what this term means.

Among the gun laws that DC v Heller argues do not violate the Second Amendment are those that restrict "the carrying of dangerous and unusual weapons." That seems pretty vague to me, so we're been tossing the idea around.

Its been suggested that all guns are dangerous - in addition to many other objects - but since they used the term, I suppose there is a distinction between guns that are dangerous and those that are. Or perhaps are less dangerous. Might these be the ones with long magazines and armor piercing bullets? Perhaps the gun itself is not so dangerous, but the peripheral equipment that makes it so.

I'm still not sure what to make of "unusual" weapons, not whether the weapons have to be both "dangerous and unusual."

We might want to keep batting this around for a while.

These links might be helpful:
- Dangerous and Unusual Misdirection.
- Dangerous and Unusual Weapons.
- No right to own a machine gun.
- United States v Henry.
- Second Amendment, Heller and Originalist Jurisprudence.

File this under unusual - maybe not dangerous.

Urban v Rural Interests in the Texas Legislature

In 2306 we discussed some of the material in Texas Monthly's look at cities in Texas and discussed the ongoing conflict between the rural and urban areas in the state, including the emerging influence of urban areas and the efforts rural representatives use to retain as much power as they do.

I need to bulk up the material I have about this conflict, and where the conflict has flared up over time. In that spirit, here's a chunk of text from First Reading that highlights differences between urban and rural representatives on the subject of arming teachers. This helps highlight cultural differences between those in cities and those in the country. It also helps us understand the utility of local options in policy formation, which is a central feature of the Texas Constitution.

A rural/urban split on the wisdom of arming school officials was evident Monday at the first hearing on school safety since the massacre at a Connecticut elementary school in December that has brought the issue of gun violence to the fore of the national debate.

“Rural school officials insisted Monday that their classrooms will be safer if teachers are allowed to carry guns,” reports The Statesman’s Mike Ward , “but urban districts and top law enforcement officials warned the practice could put those educators at `high risk’ of being mistakenly shot by responding officers in the event of a campus shooting.”

“Lawmakers are exploring a variety of options to prevent such a tragedy in Texas: State-paid training for teachers who are authorized to carry guns in classrooms, special voter-approved taxing authority for districts to pay for beefed-up security measures, even changes in state law to allow concealed-handgun licensees to carry firearms in college and university buildings.”

“If there was a common thread in testimony Monday, it was to let local school boards and parents decide the issue of arming teachers.”

“Representatives from teacher and parent groups cautioned against making one policy fit all school districts in the state. Several said while they do not support the across-the-board arming of teachers to protect students, they think those decisions are best made by local school boards, educators and parents.”
Said Barbara Beto, legislative action chair for the Texas PTA, a statewide parent-teacher lobby group,: “No parent wants their child in on an experiment with deadly weapons.”

The Bully Pulpit 2013

One of the criticisms lobbed at President Obama from liberals was that he did not forcefully push for the passage of legislation they supported. Laws like the Affordable Care Act ended up looking more like conservative - market oriented - programs rather then the government run programs they preferred.

Whatever the reasoning behind this, it is commonly argued now that Obama will spend more time travelling and giving speeches at rallies to promote his agenda. Here's a story about him taking his gun control agenda public. He is going to do similar things with his immigration proposals soon.

There is precedence for this with other presidents, and we will discuss this in 2305 when we cover the expanding nature of presidential power over time. The term "going public" was developed to refer to the efforts of Ronald Reagan to bypass Congress and take his case directly to the American people. The theory was that if he was more popular than Congress - which he was - he could get the public to onvince the general population to support his proposals and convince their members of Congress to go along. It worked.

When Bill Clinton was president, he never really dismantled his campaign operations, and used it to - try to - rally support for his innitiatives. He was a bit less successful than Reagan - but it got him reelected and saved his from removal from office followig his impeachment. This was called the permanent campaign. Obama seems to have adopted this strategy. We'll see it in action and determine whether it works for him.

Senate Democrats set to introduce gun control bill

C-Span has the announcement here, the NYT adds in here.

The bill is titled The Assault Weapons Can of 2013, it was introduced by Dianne Feinstein.

NPR provides a bit of detail on the bill's content. Here's a chunk of text from Feinstein's website:

• All semiautomatic rifles that can accept a detachable magazine and have at least one military feature: pistol grip; forward grip; folding, telescoping, or detachable stock; grenade launcher or rocket launcher; barrel shroud; or threaded barrel.
• All semiautomatic pistols that can accept a detachable magazine and have at least one military feature: threaded barrel; second pistol grip; barrel shroud; capacity to accept a detachable magazine at some location outside of the pistol grip; or semiautomatic version of an automatic firearm.
• All semiautomatic rifles and handguns that have a fixed magazine with the capacity to accept more than 10 rounds.
• All semiautomatic shotguns that have a folding, telescoping, or detachable stock; pistol grip; fixed magazine with the capacity to accept more than 5 rounds; ability to accept a detachable magazine; forward grip; grenade launcher or rocket launcher; or shotgun with a revolving cylinder.
• All ammunition feeding devices (magazines, strips, and drums) capable of accepting more than 10 rounds.
• 157 specifically-named firearms (listed at the end of this page)
  

Spinning "Gun Control"

James Fallows suggests gun control proponents start talking about "Gun Safety" not "Gun Control."

Interesting idea - who is against gun safety?

He later writes about one man's attempt to insert language about gun safety in a related wikipedia page.