GOP-Controlled Congress, State Legislatures—Not Kavanaugh, Courts—Best Way to Protect Gun Rights
Unless Republicans can retain control of Congress and a significant majority of state legislatures in the upcoming mid-term elections, as well as the presidency in the 2020 general election, the presumably pro-gun rights U.S. Supreme Court majority will be spending more time defending the Second Amendment than overturning unconstitutional restrictions on it, and other, individual rights.
Should Democrats regain control of Congress, the executive office, or both, in the next two years, challenges to gun control laws — not to gun rights legislation — would occupy the Court’s docket, writes Mark Overstreet in an essay in The Federalist.
And that is not a good thing, even if the current conservative-leaning Court upholds the challenges.
“If we have to ask the Supreme Court to overturn a law that infringes the right to arms — a law imposed by Congress and a president, or by a state legislature and governor, elected by the voters, thus presumably, reflective of the voters’ desires — even if we win that battle, it means we are losing elections and, implicitly, the war for public opinion,” Overstreet writes.
There is no guarantee Kavanaugh “is the Supreme Court justice gun owners have been waiting for,” he writes, because you can never be certain what the court or any justice on it will do.
Overstreet, a former senior research coordinator for the NRA’s Institute for Legislative Action, notes that justices David Souter, John Paul Stevens, Sandra Day O’Connor, the late former chief justice Warren Burger and Robert Bork, were all nominated by Republicans and all “opposed the right to arms.”
The late Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller (2008), despite upholding the individual right to own a personal firearm, also “laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future,” Overstreet writes.
A sustained “blue wave” would mean “a commitment to overturning Heller would be a litmus test for that president’s nominees to the federal courts,” Overstreet warns.
“Five votes for Heller … heaven help us if that is the best we can do,” he writes.
And even that is a bigger “if” than many realize.
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Bloomberg-Bankrolled Groups Outspending Pro-Gun Advocates by 40 Percent
Gun-control groups, mostly bankrolled by billionaire former New York City Mayor Michael Bloomberg, have spent $20.2 million on the upcoming mid-term elections while pro-gun groups, led by the NRA, have spent $14.1 million, according to campaign finance data released Oct. 26 by the U.S. Federal Election Commission.
Without a late avalanche of money, this would make the 2018 mid-term elections the first in more than two decades that gun-control groups have outspent gun-rights groups on congressional races, though gun-control groups have outspent gun-rights advocates in state elections in recent years, according to data compiled by the National Institute on Money in Politics.
“There is definitely a shift,” Peter Ambler, executive director of Giffords, told Reuters. “It was just a few years ago when people considered gun safety to be one of politics’ third rails. Now the opposite is true.”
Giffords, formerly Americans for Responsible Solutions, was formed by gunshot survivor and former U.S. Rep. Gabby Giffords after the December 2012 Sandy Hook school shooting.
Bloomberg, founder of Bloomberg LP — and speculative 2020 Democratic presidential candidate — formed Everytown in 2014 when he pledged $50 million to the cause and combined forces with Moms Demand Action for Gun Sense in America.
Everytown has spent $3.6 million, according to the FEC data. Most of its $20 million budget this year has been devoted to state races. It has pledged to spend $10 million in state races in Georgia, Michigan, Nevada and New Mexico, plus another $3.5 million in Nevada and $2 million in Florida.
But Bloomberg—himself—has pledged another $100 million for House and Senate Democrats this year.
Giffords has spent $16.3 million this election cycle, the FEC data show, and has set aside at least $1 million for each of four competitive House races to defeat incumbent Republicans in Virginia, Minnesota, Texas and Colorado.
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Preemption Penalties Could Endanger Law-Restricting Local Governments from Adopting Gun Laws
In a preemption battle that could have ramifications beyond Florida, Leon County Circuit Judge Charles Dodson has refused a request by state to dismiss three consolidated lawsuits that contend a 2011 law adopted by the Legislature prohibiting local governments from adopting gun laws at the risk of penalties, such as removal from office, is unconstitutional.
Dodson’s ruling boosts the challenge to state preemption filed by more than 30 local governments after the February mass shooting at Marjory Stoneman Douglas High School in Broward County.
The Legislature in 2011 passed a statute reaffirming a decades-old law that gives control of gun regulation to the state rather than local governments — a concept known as state “preemption.”
In court documents, cities and counties argue the penalties imposed by the Legislature in 2011 are unconstitutional on a series of grounds and have had a “chilling effect” on local officials considering gun restrictions.
“Plaintiffs have asserted a number of proposed regulatory and legislative actions that they wish to take,” said an August court document filed by attorneys for the local governments, according to the News Service of Florida’s Jim Saunders. “Regardless of how confident city or county officials are that they have the authority to take the proposed actions and that these actions would not violate the preemption law, they nevertheless have been prevented from pursuing them any further due to their fear that defendants or private parties may interpret their actions as violating the preemption law.”
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IN THE COURTS
Federal Suit Claims Restricting Gun Sales to 18- to 20-Year-Olds Is Unconstitutional
Two Virginia residents—a 20-year-old male University of Virginia student and an 18-year-old woman—are suing the U.S. government, claiming that a federal law restricting sales of handguns to citizens younger than 21 is unconstitutional.
The lawsuit was filed in federal court in Charlottesville. Federal officials have between 30 and 60 days to respond to the complaint.
According to the suit, Tanner Hirschfeld and Natalia Marshall were turned away by local firearms dealers when they applied to purchase handguns.
“Currently, young adults may purchase higher-powered firearms, including rifles and shotguns, from federally licensed dealers, but they cannot purchase handguns or handgun ammunition,” Elliot Harding, the Charlottesville attorney who filed the suit, told the Charlottesville Daily Progress.
Harding said legally licensed firearm and ammunition dealers cannot sell to persons under the age of 21, but private sales, as well as actual ownership and possession, are not illegal.
“The federal ban relegates young adults to an unregulated, limited market of private, personal transactions for handguns,” he told The Daily Progress. “The suit seeks to preserve equal protection of the fundamental liberty to defend oneself, as guaranteed by the Second and Fifth Amendments of the Constitution of the United States.”
Although Virginia law prohibits those younger than 21 from obtaining a concealed handgun permit, state law does allow 18- to 20-year-olds to own a handgun and to carry it in public and in plain view.
But young adults cannot purchase a gun or ammunition from federally licensed dealers who are required to perform background checks on buyers.
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