Second Amendment Update, and a few other items

Dave Kopal is probably the smartest person that I have ever been privileged to meet. Albeit quite briefly. Dave’s newsletter is incredible and I would urge anyone interested in freedom, liberty, and law to subscribe. Here is the latest.

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Dave Kopel’s Second Amendment Newsletter

February 10, 2009
Dave Kopel’s Second Amendment Project is based at the Independence Institute,
a free-market think tank in Golden, Colorado.

The Independence Institute publishes several newsletters on other topics, plus a weekly newsletter containing our most recent op-eds and news of our activities. E-mail subscription to any of these newsletters is free.

Delivery of this newsletter comes courtesy of the Second Amendment Foundation, in Bellevue, Washington.
This email was sent to

Please visit Dave Kopel’s website, containing articles on the Second Amendment and other freedom topics.

To subscribe to this free e-mail newsletter, please send a request to:

Table of Contents

  1. New by Kopel: Amicus brief in Oak Park Case; Law Review Articles on the Relationship between Guns and Freedom; Magazine articles and short essays on the new administration, ‘BEWARE THE RAHM!,’ Eric Holder, The Sword & the Tome, the SHOT Show, Kmiec v. Kmiec, IANSA Strikes Again, a new Podcast Series, one on Holder, one on Hillary Clinton, and… Twitter!
  2. Online Video: Satirical ‘Gun Free Zones,’ NRANews video archive
  3. International: Armed Nepalese; Pakistani Self-Defense; Uruguayan Gun Control
  4. Anti-Rights Movement: Obama’s Anti-RKBA Plans Surface; Brady Wish List; Philadelphia Protest; Regulatory Czar Stealth Agenda; Heller’s Lack of Effect; NRA on the Holder Nomination; Another SHOT Forecast
  5. Pro-Rights Movement: Firearms Retailer Defense Fund; Halbrook on Holder; Winnetka Caves in Illinois; Massachusetts Police Chief Charged; Minnesota Concealed Carry
  6. States and Failed States: Colorado Won’t Pre-Empt ‘Safe Storage’ or Castle; DC Busts USMC Amputee; NJ Gun Rationing; New York Loopholes and Legal Horrors
  7. Law: Federal Courts on Chambers and Heller, No OSHA Pre-Emption, SF Housing Authority Caves, National Parks Carry Suit; State Courts on Haney, Gary Suit Back On, Nebraska Locales can’t forbid Concealed Carry
  8. Research: Hardy on ‘Popular Understanding’ and St. George Tucker; The ‘Remainder Problem’ in Gun Control; Lund on Originalist Jurisprudence; Volokh vs. Brady Campaign in Fed. Soc Debate

New by Kopel

Legal Brief

Amicus brief in Chicago and Oak Park Handgun Ban Cases

David B. Kopel, Maureen Martin and James W. Ozog
In the United States Court of Appeals for the Seventh Circuit
February 4, 2009
PDF files require Adobe Acrobat Reader or similar software.

Dave’s brief in the 7th Circuit appeal of the SAF and NRA challenges to the handgun bans in Chicago and Oak Park. The brief is filed on behalf of the Independence Institute, the International Law Enforcement Educators and Trainers Association, The Heartland Institute, Prof. David J. Bordua, Prof. William R. Tonso, and the Law Enforcement Alliance of America. The brief explains the social science evidence showing the public safety benefits of guns in law-abiding hands, and provides data showing the failure of the Chicago handgun ban.

Law Review Articles

The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error

David B. Kopel
Denver University Law Review
Vol. 86, No. 3, 2009, forthcoming

This is Lead article in their annual Tenth Circuit Survey. It provides a detailed analysis of all Second Amendment cases which have been decided by the Tenth Circuit Court of Appeals. The article examines the Circuit’s superficial reasoning in its claims that the Second Amendment protects only militiamen, and the Circuit’s refusal even to address important sources of authority which took a different view.

Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations

David B. Kopel
Texas Review of Law and Politics
Vol. 13, 2009, Forthcoming

The near-final version of this forthcoming article from the Texas Review of Law & Politics is now available on SSRN. Dave wrote the article with Carl Moody and Howard Nemerov. Here’s the abstract: There are 59 nations for which data about per capita gun ownership are available. This Article examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.

Magazine Articles and Short Essays

Gun Control

David B. Kopel
Change in Command Issue 24
January, 2009

Dave here examines how Americans should view the inauguration of President Obama from a 2nd Amendment perspective.


Dave Kopel
America’s First Freedom
January, 2009

“After pledging his support for the Second Amendment during the campaign, President-elect Barack Obama appoints devout gun-ban supporter Rahm Emanuel as his chief of staff.”


Dave Kopel
America’s First Freedom
February, 2009

On the heels of naming gun-banner Rahm Emanuel as his Chief of Staff, Barack Obama once again puts the lie to his supposed support of the Second Amendment by selecting former Clintonite and gun-hater Eric Holder as attorney general.

The Sword & the Tome

Dave Kopel
America’s First Freedom
February, 2009
PDF files require Adobe Acrobat Reader or similar software.

With a new presidential administration that is hostile to private firearm ownership now in office, we’ll likely be hearing a renewed torrent of anti-gun rhetoric coming from all directions. As we prepare for these challenges and arguments, it’s a good time to recall some important quotes that provide a long-term perspective.

SHOT Show Report

David Kopel
The Volokh Conspiracy
January 17, 2009

Retailers, wholesalers, and manufacturers were happy that they had been making lots of money (because of concerns about the administration) but there was also great trepidation about the future.

Kmiec v. Kmiec regarding Heller

Dave Kopel
The Volokh Conspiracy
January 6, 2009

“It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time, especially without an expalanation of how he came to the conclusion that his former view was so utterly mistaken–or without even an acknowledgement that he recently held his former view so firmly that he urged the Supreme Court to adopt it.”

Arms Trade Treaty’s Purpose: Block Arms Sales to Israel

Dave Kopel
The Volokh Conspiracy
January 30, 2009

“A recent statement by the International Action Network on Small Arms, the world’s leading gun prohibition lobby, states that the Arms Trade Treaty, currently being drafted in the United Nations, would prohibit arms sales to Israel and to Hamas.”

New Podcast Series

Attorney General Eric Holder

Dave Kopel
Dave Kopel’s Second Amendment Podcast
Jan. 23, 2009

This is the first installment of a new series of weekly podcasts, to be published every Friday. The Feb. 6 topic will the the Seventh Circuit cases on the Chicago handgun ban.

Hillary Clinton

Dave Kopel
Dave Kopel’s Second Amendment Podcast
January 29, 2009

Hillary Clinton will be a strong Secretary of State, but her hostility to civillian ownership of firearms continues unabated.

Ongoing Dave Updates


Dave Kopel

Check in on Dave on Twitter. For the yet-unschooled, “Twitter is a free service that lets you keep in touch with people through the exchange of quick, frequent answers to one simple question: What are you doing?” Dave provides hyperlinks and other data related to his ongoing activities. The service lends itself to small, handheld internet devices.

Online Video

Gun Free Zones

The Half Hour News Hour
YouTube Video
July 16, 2007

A rather funny short from the canceled Fox satirical series about the concept of protecting oneself within the putative safety of a ‘gun free zone.’


Informational Web Site
The National Rifle Association

The NRA has produced weekly professional internet videos on subjects of interest to supporters of the Right to Keep and Bear Arms. This site offers access to the current week’s broadcast and an archive of past video.



All Nepalese should carry weapons, says Maoist Minister

Press Trust Of India
January 11, 2009

“All Nepali citizens should be given the right to carry arms for protecting themselves from ‘colonial powers’, a controversial Maoist Minister said. Gopal Kiranti did not elaborate on the “colonial powers”, but the statement comes a day after media quoted a yet-to-be released Maoist political document as saying that ‘American colonialism is moving ahead through Indian expansionism with the intention of increasing its hegemony in South Asia.’ “


For Middle-Class Pakistanis, a Gun Is a Must-Have Accessory: With Kidnappings and Violence on the Rise, Demand for Weapons Permits Grows

Peter Wonacott
The Wall Street Journal
January 6, 2009

After escaping kidnappers who chained him to a bed for 25 days, Mohammad Javed Afridi pressed Pakistani law enforcement for swift justice. The police offered him something else: temporary permits for four automatic assault rifles.


Discussing an Agenda for Gun Control

Comunidad Segura: Network of Ideas and Practicies in Citizen Security
UN Office for the Coordination of Humanitarian Affairs
January 16, 2009

“Congresswoman Daisy Tournİ, one of the main champions of gun control in the Uruguayan Parliament is also currently head of the nation’s Ministry of Interior. Since she took office however, progress on the nation’s gun control agenda has been postponed by issues related to violence and insecurity, as well as social demands.”

The Anti-Rights Movement

Urban Policy

Informational Web Page
The White House
January 21, 2009

On this website, posted the day after the inaguration, the Obama/Biden administration lists its objectives in this area: repealing the Tiahrt Amendment, which they claim restricts the ability of local law enforcement to access important gun trace information, and which they say would give police officers across the nation the tools they need to solve gun crimes and fight the illegal arms trade. Obama and Biden also favor ‘commonsense measures’ that respect the Second Amendment rights of gun owners, while keeping guns away from children and from criminals. They support closing the ‘gun show loophole’ and making guns in this country childproof, the term is undefined. They also support making the expired federal Assault Weapons Ban permanent.

Gun Violence in America: Proposals for the Obama Administration

Press Release
Brady Campaign to Prevent Gun Violence
December 28, 2008
PDF files require Adobe Acrobat Reader or similar software.

The Brady Campaign here makes its own case for ‘common sense’ gun laws to the impending Obma Administration. The document treats the need for immediate gun control as part of the President’s health care agenda.

5 Activists Arrested at Gun Shop Protest

Dafney Tales
The Philadelphia Daily News
January 15, 2009

Five activists were arrested by Philadelphia Police after refusing to leave Colosimo’s Gun Center, despite multiple warnings.

Obama ‘Regulatory Czar’ has Secret Animal-Rights Agenda, Says Consumer Group

Press Release
Center for Consumer Freedom
January 15, 2009

“The nonprofit Center for Consumer Freedom said today that Cass Sunstein, the Harvard University Law School professor tapped by President-elect Obama to head the Office of Information and Regulatory Affairs, has a secret aim to push a radical animal-rights agenda in the White House. Sunstein supports outlawing sport hunting, giving animals the legal right to file lawsuits, and using government regulations to phase out meat consumption.”

Letter on the Eric Holder Nomination for Attorney General of the United States

Wayne LePierre and Chris W. Cox
The National Rifle Association
January 9, 2009
PDF files require Adobe Acrobat Reader or similar software.

The Executive Vice-President of the NRA and the Executive Director of the NRA’s Institute for Legislative Action wrote an open letter to Senators Patrick Leahy and Arlen Specter on their grave misgivings over President Obama’s nomination of Eric Holder to be the next Attorney General. Holder opposed Heller, declared that the 2nd Amendment is not an individual right, and supported restrictive fierarms control legislation.

The New Second Amendment: A Bark Worse than Its Right

Adam Winkler
The Huffington Post
January 2, 2009

“To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing “straw” purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws. Since Heller, its Gun Control: 60, Individual Right: 0.” Winkler is a law professor at the UCLA School of Law.

Post-SHOT Recovery

Michael Bane
The Michael Bane Blog
January 25, 2009

Dave made reference to this summary of the firearms scene at the SHOT Show and in the political environment in Washington.

The Pro-Rights Movement

Firearms Retailer Defense Fund Launched

January 13, 2009

“The Firearms Retailer Defense Fund is a new non-profit corporation created to assist independent retailers with legal expenses should they need to defend themselves against industry-altering litigation.”

FRDF: Firearms Retailer Defense Fund, LLC.

Informational Web Page

“The Firearms Retailer Defense Fund (FRDF) has been created to assist firearms retailers should they find themselves involved in litigation filed by politicians, municipalities or anti-gun orgnanizations that scrutinize your business practices. As independent firearms retailers, you need not feel alone in your battle to defend your business and your rights to keep and bear arms.”

Halbrook to Testify in Hearings on Eric Holder for Attorney General

David Theroux
The Beacon Blog
January 16, 2009

Here is Theroux’s blog posting of the testimony of Stephen P. Halbrook on the nomination of Eric Holder to be the next Attorney General of the United States, with comments and links.

Testimony of Stephen P. Halbrook on the Nomination of Eric H. Holder, Jr., For Attorney General of the United States

Stephen P. Halbrook
The Senate Judiciary Committee
January 14, 2009

Here is the verbatim transcript of Halbrook’s testimony.

Outdoor Sports

Ark. Lawmaker Seeks Amendment to Protect Hunting

AP (Arkansas)
January 12, 2009

“State Sen. Steve Faris is trying again for an amendment creating a constitutional right for Arkansans to hunt and fish.”

PETA wants to Rename Fish “sea kittens”

Lindsay Barnett
The Los Angeles Times
January 12, 2009

PETA has come up with an interesting tactic to discourage human consumption and sporting pursuit of fish.

Proposed Rule Clarifies Hunting Rule Changes at National Wildlife Refuges

Fish and Wildlife Service, U.S. Department of the Interior
Federal Register
January 13, 2009
PDF files require Adobe Acrobat Reader or similar software.

This document describes proposed changes in policy and regulations regarding U.S. Wildlife refuges.

States and Failed States


Brophy bill to Protect Homeowners Killed in Committee

Colorado State Senate News
January 26, 2009

Dave testified in favor of a bill to forestall municipalities from passing ‘safe storage’ laws that render firearms useless for immediate home defense. Democrats killed the bill in a strict party-line vote in the Senate Committee on State, Veteran, and Military Affairs.

Committee Dems Refuse to ‘Make My Day Better’

Colorado State Senate News
January 28, 2009

“Republican efforts to extend to the workplace the same rights Colorado citizens already have to protect their homes from violent intruders were stymied by ruling Democrats today.” The Democrats of the committee voted unanimously against the bill.

District of Columbia

Marine Amputee Acquitted On Gun Possession Charges

Keith L. Alexander
The Washington Post
January 14, 2009

“After being deadlocked twice, a D.C. Superior Court jury yesterday acquitted a Marine amputee on felony charges of gun possession stemming from an arrest while he was on the way to Walter Reed Army Medical Center.”

New Jersey

N.J. Fight on “Straw” Gun Buys Heats Up

Jonathan Tamari
The Philadelphia Inquirer
January 4, 2009

“New Jersey could soon become the fourth state to limit handgun purchases to one a month, a move aimed at fighting “straw” gun buyers who purchase weapons legally and pass them to criminals.”

New York

Old Firearms Given New Life by Restrictive New York Gun Control Laws

J.D. Tuccille
January 19, 2009

With criminals ignoring New York City’s gun restrictions, citizens are purchasing exempted black powder muzzle-loading revolvers in an effort to protect themselves.

Does Nassau County D.A.’s No-Handgun-Possession Policy Violate New York Law?

Eugene Volokh
The Volokh Conspiracy
January 13, 2009

Nassau County prohibits its assistant D.A.’s from applying for a handgun permit or owning a handgun while in office. Gene Volokh isn’t certain that New York state law allows an employer to do that.

My Time in a NYC Jail

January 21, 2009

A retired Marine and a current Defense contractor spent two days and one night in a New York City jail after being improperly arrested in violation of federal law while trying to transport an unloaded firearm required for his work overseas.

NYC Jailhouse Blues

Brian Doherty
Reason Magazine
January 23, 2009

Here’s a notice and further comment upon the account above.


Federal Courts


Associate Justice David Breyer
January 13, 2009

In Chambers v. US, the Court clarified the potential impact of failing to report for penal confinement if you are later convicted of being a felon with a firearm. Under the Armed Career Criminal Act, an individual convicted of being a felon in possession of a firearm gets a mandatory 15 year sentence if they have three prior convictions for serious drug offenses, violent felonies, or both. Federal prosecutors wanted to use a previous conviction for failing to show up to jail as one of Mr. Chambers “violent felonies.” The Supreme Court said no in an opinion by Justice Breyer, Justice Alito concurred.

Oral Argument on the Nordyke Ninth Circuit Court of Appeals case

Case No. 07-15763
U.S. 9th Circuit Court of Appeals
January 15, 2009

Here is the actual audio of the oral arguments presented in the Nordyke vs. King case, the suit contesting an Alameda County law prohibiting gun shows on county property.

Federal Act Does Not Pre-empt Oklahoma Gun Law

Marie Price
The Journal Record (Oklahoma City)
January 21, 2009

“The federal agency in charge of workplace safety does not believe the Occupational Safety and Health Act pre-empts an Oklahoma law prohibiting employers from forbidding the storing of firearms in workers’ cars, according to a letter filed in an appeal with the 10th U.S. Circuit Court of Appeals.”

Housing Authority Settles Gun Lawsuit

Bob Egelko
The San Francisco Chronicle
January 14, 2009

The San Francisco Housing Authority has agreed to allow its residents to own guns in a settlement of a National Rifle Association lawsuit that followed last year’s U.S. Supreme Court ruling on the right to bear arms.

Settlement Agreement in Doe v. San Francisco Housing Authority

Trutanich-Michel LLP and Henry Alvarez, Executive Director of the San Francisco Housing Authority
United States District Court for the Northern District of California, San Francisco Division
January 12, 2009
PDF files require Adobe Acrobat Reader or similar software.

Here is the actual agreement in facsimile.

New National Parks Rule Allowing Loaded Guns Challenged by Lawsuit

Michael Sangiacomo
The Cleveland Plain Dealer
January 7, 2009

“The National Parks Conservation Association and the Coalition of National Park Service Retirees filed suit this week in U.S. District Court to stop enforcement of a new regulation allowing loaded, concealed firearms in national parks, including the Cuyahoga Valley National Park.”

The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional

Eugene Volokh
The Volokh Conspiracy
January 12, 2009

“That’s U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm.” Dr. Volokh provides some commentary by Magistrate Judge James C. Francis IV.

United States of America vs. Jason Arzberger

Magistrate Judge James C. Francis IV
United States District Court, Southern District of New York
December 31, 2008
PDF files require Adobe Acrobat Reader or similar software.

Here is the actual decision.

State Law and Cases

Interesting Georgia Case

David Hardy
Arms and the Law
January 19, 2009

“The gun owner was convicted of a drug offense in 1969, and received a full pardon in 1995. When he tried to purchase a firearm, the NICS staff called a local judge and asked him to revoke the fellow’s pistol permit (which I suspect is a BIG violation of the Privacy Act). Basis was a Georgia statute that says persons convicted of a drug offense are forever ineligible to get a pistol permit.Initially he surrendered his permit, then got new counsel, John Monroe and Douglas King, and they put up a fight. The judge ultimately rules for them. A pardon is an executive act, authorized by the state Constitution. The Legislature cannot change its effect. He then sued for an injunction against Federal authorities stopping his purchase and seeking an injunction against them prosecuting him. Here’s the webpage on the pleadings. Word is that the government caved in, and provided him with a certification that he is not prohibited to purchase and possess.”

In Re Haney

Probate Court of Forsyth County
State of Georgia
December 23, 2008
PDF files require Adobe Acrobat Reader or similar software.

The actual order of the court In Re Haney is here.

Indiana Supreme Court Green-lights Lawsuit that Blames Gun Makers for Gary’s Crime Problems: Case Alleges Gun Makers, Dealers Knew Weapons Would Go to Criminals

Jon Murray
The Indianapolis
January 13, 2009

“The Indiana Supreme Court declined to review a lower court ruling, ending the second round of appeals since the case was filed in 1999. Gary’s suit alleges that 16 gun makers, including Smith & Wesson and Beretta, and six Northern Indiana gun dealers sold handguns they knew would get into the hands of criminals barred from owning them.”

Authority of Local Political Subdivisions to Prohibit the Carrying of Concealed Handguns by Permit Holders under the Concealed Handgun Permit Act

Jon Bruning
Attorney General, State of Nebraska
January 14, 2009

The Nebraska Attorney General opinion explains that cities and towns may not ban the licensed carrying of handguns, because such a ban is preempted by state law. Localities may ban licensed carry in places (e.g., schools) were the mere possession of handguns is prohibited.


Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68

David T. Hardy
Working Paper
January 1, 2009

Hardy argues that the decision in Heller arose from a belief that is not the intent of the body that proposed an amendment, but the understanding of the people at large who ratified it that matters in understanding a constitutional right. In that context, he analyzes the 14th Amemendment, arguing that the Slaughterhouse decisions invalidated what was understood by the mass of the people supporting its ratification to be that amendment’s expansion of the Bill of Rights to preclude its abrogation by the states.

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights

David T. Hardy
Northwestern University Law Review: Colloquy
December 22, 2008

“Given contemporary adherence to originalist interpretation, and the likelihood of future conflict—as demonstrated in Heller—between varieties of originalist analysis, dissemination of Tucker’s hitherto unpublished lecture notes may offer an important contextualization of the Bill of Rights during the Founding period. It is my hope that working to democratize, as it were, the availability of these documents will assist future historical and legal analysis.”

Imagining Gun Control in America: Understanding the Remainder Problem

Nicholas J. Johnson
Wake Forest Law Review
January 13, 2009
PDF files require Adobe Acrobat Reader or similar software.

“Without a commitment to or capacity for eliminating the existing inventory of private guns, the supply-side ideal and regulations based on it cannot be taken seriously. It is best to acknowledge the blocking power of the remainder and adjust ourgun control regulations and goals to that reality. Policymakers who continue to press legislation grounded on the supply-side ideal while disclaiming the goal of prohibition are deluded or pandering.”

The Second Amendment, Heller, and Originalist Jurisprudence

Nelson Lund
UCLA Law Review
2009 Forthcoming
PDF files require Adobe Acrobat Reader or similar software.

While Lund agrees with the majority’s conclusion, he is disappointed in, for example, its dicta regarding how certain laws would still pass muster, which is given without any explanation derived from original understanding.

Gun Policy Debate Podcast

Charlie Blek and Eugene Volokh
Los Angeles chapter of Federalist Society and the Libertarian Law Society
December 5, 2008

Here is the audio of a fifty-one minute debate, moderated by Chief Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit, between Mr. Charlie Blek of the Brady Campaign and Professor Eugene Volokh of the UCLA Law School on the subject of firearms policy.

This newsletter is compiled with help from Dr. Rob S. Rice. For more on this hyperenervated, yet volitional individual, see here: Dr. Rice also labors assiduously on his non-fiction, for examples of which see here:

Al Qaeda delenda est!

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