Delaware State Sportsmen's Association

In the coming days and weeks, the NRA Political Victory Fund (NRA-PVF) will be announcing endorsements and candidate ratings in hundreds of federal races, as well as thousands of state legislative races. Unless these announcements are required by the timing of primary or special elections, the NRA-PVF generally does not issue endorsements while important legislative business is pending. The NRA-PVF also operates under a long-standing policy that gives preference to incumbent candidates who have voted with the NRA on key issues, which is explained in more detail here [http://www.nraila.org/Issues/Articles/Read.aspx?id=430&issue=047].

The U.S. Senate recently considered a number of issues important to NRA members, including the confirmation of Elena Kagan to the Supreme Court.  Out of respect for the confirmation process, the NRA did not announce its position on Ms. Kagan’s confirmation until the conclusion of her testimony before the Senate Judiciary committee.  Her evasive testimony exacerbated grave concerns we had about her long-standing hostility towards the Second Amendment.  As a result, the NRA strongly opposed her confirmation and made it clear at the time that we would be scoring this important vote.

The vote on Elena Kagan’s confirmation to the Court, along with the previous year’s confirmation vote on Sonia Sotomayor, are critical for the future of the Second Amendment.  After careful consideration, the NRA-PVF announced today that it will not be endorsing Senate Majority Leader Harry Reid for re-election in the 2010 U.S. Senate race in Nevada.

NRA members and other interested parties are encouraged to visit www.NRAPVF.org for more information as Election Day draws near.

Extra! Extra! Read All About It!

The U.S. Supreme Court’s recent ruling in McDonald v. Chicago was a landmark victory for all law-abiding Americans, reaffirming the Second Amendment Right to Keep and Bear Arms as a fundamental right, regardless of where one lives.

This 33-page special edition of America’s 1st Freedom Digital magazine features in-depth coverage of the McDonald case and what it really means to all of us. Click the link at http://viewer.zmags.com/publication/05be2967
<http://viewer.zmags.com/publication/05be2967>  to view this special digital edition, which also features dozens of embedded videos and hyperlinks to related information.

Note that a good Internet connection and a fast processor are necessary for  a satisfactory digital magazine experience, and Adobe Flash Player 9 is required to experience the rich media features.

Savor this hard-fought victory, and prepare for the many battles still  ahead!

Joint Statement by Wayne LaPierre, NRA Executive Vice President & CEO,
and Chris Cox, Executive Director of NRA’s Institute for Legislative Action

Reversed and remanded. 5 -4 decision. Click here to obtain a pdf of the opinion.

Your Help Is Needed In Support of BATFE Reform Bills S. 941 And H.R. 2296

Tuesday, January 26, 2010

As we’ve been reporting for months, Senator Mike Crapo (R-Idaho) and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) have introduced S. 941, the “Bureau of Alcohol, Tobacco, Firearms and Explosives Reform and Firearms Modernization Act of 2009” in the U.S. Senate. Representatives Steve King (R-Iowa) and Zack Space (D-Ohio) have introduced a companion bill—H.R. 2296—in the U.S. House. The bills would roll back unnecessary restrictions, correct errors, and codify longstanding congressional policies in the firearms arena. These bipartisan bills are a vital step to modernize and improve BATFE operations.

Of highest importance, S. 941and H.R. 2296 totally rewrite the system of administrative penalties for licensed dealers, manufacturers and importers of firearms. Currently, for most violations, BATFE can only give a federal firearms license (FFL) holder a warning, or revoke his license.

S. 941 and H.R. 2296 would allow fines or license suspensions for less serious violations, while still allowing license revocation for the kind of serious violations that would block an investigation or put guns in the hands of criminals. This will help prevent the all-too-common situations where BATFE has revoked licenses for insignificant technical violations—such as improper use of abbreviations or filing records in the wrong order.

Among its other provisions, S. 941 and H.R. 2296 would:

· Clarify the standard for “willful” violations—allowing penalties for intentional, purposeful violations of the law, but not for simple paperwork mistakes.

· Improve the process for imposing penalties, notably by allowing FFLs to appeal BATFE penalties to a neutral administrative law judge, rather than to an employee of BATFE itself.

· Allow a licensee a period of time to liquidate inventory when he goes out of business. During this period, all firearms sold would be subject to a background check by the National Instant Criminal Background Check System.

· Allow a grace period for people taking over an existing firearms business to correct problems in the business’s records—so if a person inherited a family gun store (for example), the new owner couldn’t be punished for the previous owner’s recordkeeping violations.

· Reform the procedures for consideration of federal firearms license applications. Under S. 941, denial of an application would require notification to the applicant, complete with reasons for the denial. Additionally, an applicant would be allowed to provide supplemental information and to have a hearing on the application.

· Require BATFE to establish clear investigative guidelines.

· Clarify the licensing requirement for gunsmiths, distinguishing between repair and other gunsmith work and manufacture of a firearm. This would stop BATFE from arguing that minor gunsmithing or refinishing activities require a manufacturers’ license.

· Eliminate a provision of the Youth Handgun Safety Act that requires those under 18 to have written permission to use a handgun for lawful purposes (such as competitive shooting or safety training)—even when the parent or guardian is present.

· Permanently ban creation of a centralized electronic index of out of business dealers’ records—a threat to gun owners’ privacy that Congress has barred through appropriations riders for more than a decade.

· Allow importation and transfer of new machineguns by firearm and ammunition manufacturers for use in developing or testing firearms and ammunition, and training customers. In particular, ammunition manufacturers fulfilling government contracts need to ensure that their ammunition works reliably. S. 941 and H.R. 2296 would also provide for the transfer and possession of new machineguns by professional film and theatrical organizations.

· Repeal the Brady Act’s “interim” waiting period provisions, which expired in 1998.

· Give BATFE sole responsibility for receiving reports of multiple handgun sales. (Currently, dealers also have to report multiple sales to state or local agencies, a requirement that has shown little or no law enforcement value.) State and local agencies could receive these reports upon request to BATFE, but would have to comply strictly with current requirements to destroy these records after 20 days, unless the person buying the guns turns out to be prohibited from receiving firearms.

· Restore a policy that allowed importation of barrels, frames and receivers for non-importable firearms, when they can be used as repair or replacement parts.

S. 941 represents the first time such BATFE reform legislation has been introduced in the Senate. However, the House passed similar legislation (H.R. 5092) in the 109th Congress by a 277-131 vote. A majority of the House–224 congressmen–cosponsored H.R. 4900 in the 110th Congress.

A fact sheet on S. 941/H.R. 2296 can be found here.

As of this writing, S. 941 has 20 cosponsors, and H.R. 2296 has 200 cosponsors.

Please be sure to contact your U.S. Senators and Representative, and ask them to cosponsor and support S. 941 and H.R. 2296! You can call your U.S. Senators at (202) 224-3121, and your U.S. Representative at (202) 225-3121.

Fairfax, Va. – Today, the U.S. Supreme Court granted the National Rifle Association’s motion for it to participate in the upcoming oral argument in McDonald v. City of Chicago.

“We are pleased with the Court’s decision to grant our motion,” said Chris W. Cox, NRA’s chief lobbyist. “NRA’s solitary goal in McDonald is to ensure that that our fundamental, individual right to keep and bear arms applies to all law-abiding Americans, regardless of the state in which they live. We are hopeful that the Court will share our view that the Framers of the Fourteenth Amendment clearly intended to apply the Second Amendment to the States.”

Last September, the Court agreed to consider the McDonald case, on appeal from the U.S. Court of Appeals for the Seventh Circuit. That court incorrectly claimed that prior Supreme Court precedent prevented it from holding in favor of incorporation of the Second Amendment. The NRA believes the Seventh Circuit should have followed the lead of the Ninth Circuit Court of Appeals’ decision in Nordyke v. King, which found that Supreme Court precedent does not prevent the Second Amendment from applying to the states through the Fourteenth Amendment’s Due Process Clause. As a party in McDonald, the NRA looks forward to participating in the upcoming oral argument.

Former U.S. Solicitor General Paul Clement will be representing the NRA at oral argument, which will occur on March 2.

(NRA Press Release 1/25/10)

David Kopel • December 21, 2009 3:45 pm

On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been plenty of interesting scholarship recently on Privileges or Immunities. Here’s a guide to some of the most important articles:

Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009). Today, the conventional wisdom is that The Slaughter-House cases asserted that the Privileges or Immunities clause does not protect the Bill of Rights. But until 1900, the conventional reading–including in Supreme Court opinions–was that the case only rejected application of procedural rights to the states. The idea that SH rejects the application of substantive rights (e.g., freedom of speech, right to keep and bear arms) came during the progressive era, as the Court and the rest of the legal elites panicked about labor unrest, and decided that states should have wide latitude to suppress dissent. The historical evidence supports using PI to make the Second Amendment apply to the states.

Timothy Sandefur, Privileges, Immunities, and Substantive Due Process, 5 NYU J.L. & Liberty (forthcoming). SH’s most egregious error was in nullifying the principle of “paramount national citizenship” which lay at the heart of the ideology of the 14th Amendment’s advocates. Revitalizing the PI clause should not lead to the abandonment of “substantive due process.” This article provides the best collection of citations and sources in  defense of the theory that, long before the 14th Amendment was written, it was widely understood that the principle of “due process” substantively prohibited certain arbitrary acts by legislatures (e.g., giving A’s property to B) even if the proper procedures were followed.

Kenneth A. Klukowski,  Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195 (2009). Argues that SH should be affirmed, and that the Second Amendment can be protected against state/local infringement by the PI clause, because the Amendment fits under SH’s restrictive definition of rights of national citizenship which are created by the Constitution. Makes policy arguments that PI is superior to Due Process for protection of 2d Amendment rights, since the former applies only to citizens. Warns that overruling SH could provide a future Court with too many opportunities to fabricate novel “rights” out of PI.
Ilya Shapiro & Joshua Blackman. Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, Georgetown J.L. & Pol’y (forthcoming). Addresses the concerns raised about a revived PI clause–in particular that the “Constitution in 2020″ professors are eager to use PI to create positive rights to various forms of government spending, and to use PI to import the p.c. “norms” which are supposedly found in international law. Shapiro and Blackman argue that the current Court should be proactive, and should use McDonald to write a strong opinion which declares that PI protects the same set of rights as are protected in Washington v. Glucksberg (traditional rights deeply embedded in American history). Under the Glucksberg standard, the right to arms and the right to self-defense would clearly be protected by PI. Notably, the authors contend that the term “incorporation” is incorrect. The PI clause directly protects various rights, whether or not those rights are enumerated in the Bill of Rights. Thus, a proper reading of PI would require states to respect the arms rights and self-defense rights of citizens (even if the Second Amendment had never been written) because those rights meet the Glucksberg test.

Klukowski and his colleague Ken Blackwell have been carrying on a lively op-ed and Internet debate with Shapiro/Blackman. A long blog post today by Shapiro, on Cato@Liberty, contains links to both sides of the discussion.
In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)

In early January, I will be doing a podcast interview of Shapiro. As many readers know, Shapiro is Cato’s Senior Fellow in Constitutional Studies, and is Editor-in-Chief of annual Cato Supreme Court Review; I am an Associate Policy Analyst with Cato. Commenters are welcome to suggest questions for the podcast. It would be appreciated if every would-be commenter read at least one of the aforesaid articles before commenting. This will help the comments section advance the discussion, rather than merely retreading familiar arguments.

Categories: Constitutional History, Constitutional Theory, Fourteenth Amendment, Guns, Supreme Court