2nd Amendment Logic

Matthew Hoy
By Matthew Hoy on June 3, 2015

I always find it interesting to take some of the "logic" applied by gun-control advocates with regard to the 2nd Amendment and apply it to the First Amendment. This 2nd Amendment logic usually quickly devolves into something indistinguishable from a reductio ad absurdum.

In California, the Calguns Foundation filed suit against California's 10-day waiting period before ownership can be taken of a firearm. Smartly, they targeted their litigation in such a way that it highlights the absurdity of the "cooling off" period. It makes no sense for there to be a waiting period designed to prevent "impulse" purchases of firearms if the individual in question already owns a firearm. They won a partial, and reasonable victory at the district court level when Judge Anthony Ishii found for the plaintiffs when the firearm purchaser passes a background check and meets any of three conditions.

  1. The purchaser has already purchased a gun as verified by the state's Automated Firearms System database.
  2. The purchaser has a valid concealed carry permit.
  3. Situation #1 and the person has a state Certificate of Eligibility to own firearms.

Both #2 and #3 above require a thorough background check and fingerprinting.

Obama's favorite Attorney General, Senate candidate, and 2nd Amendment foe.
Obama's favorite Attorney General and Senate candidate.

Anti-gun Attorney General Kamala Harris doesn't like that one bit, and has appealed. You can find her initial brief at the appellate level here (PDF format). The most interesting part of this argument is summarized thusly by the Calguns Foundation:

Hypothetical Frontiersmen

The Attorney General begins her argument with a hypothetical look at American history.  According to Harris, the Founding Fathers would have been used to a slower “pace of life” in the Founding Era and, therefore, really wouldn’t have minded a waiting period.  In their view, the impossibility of an act in the 1700s justifies arbitrary restrictions in the 2000s.  Because “[m]ost people lived on isolated family farms, a day’s horseback ride away from the nearest store, which may or may not have carried firearms and which store was typically closed during the entire harvest season,” therefore a second waiting period is justifiable today.  Taking the legal concept of interpreting the Second Amendment as it would have been understood to the Founders, the State concludes that the Founders would not have viewed the Second Amendment as guaranteeing “instant” access to firearms, let alone “instant” access to multiple firearms.

I almost don't know whether to laugh or cry. Let's put this dress on the First Amendment and see how it fits.

The Founders who wrote the 2nd Amendment wouldn't have minded prior restraint on the publication of certain information because in the Founding Era it could take several days to write a news article with a quill and then have that edited, typeset and finally printed a page at a time on a manual printing press. It could take days to get that newspaper to another state by horseback. So, because it took a week to get a newspaper from Georgia to Maine, the state can delay publication of news by up to seven days to cool tensions surrounding, say, an officer-involved shooting.

The state can also require you to undergo a background check and wait 10 days if you want to use a telephone to contact someone across the country. In the Founding Era, it was inconceivable that you could speak, instantaneously, to someone thousands of miles away. You might tell lies in that phone call and it could hurt someone's feelings. So, shut up for a week.

Blogs? Fuggheddaboutit.

The truth of the matter is in the Founding Era, if you had the money and someone else had the firearm, you could purchase it that very instant without a background check, a waiting period or any other arbitrary and capricious rule that's been invented by gun-grabbers. To pretend that the differences in technology justify government regulation forcing the effects of that lack of technology is ridiculous. Imagine the government saying you've no right to drive your car any faster or farther than a horse could travel in a day.

Of course, this is far from a guarantee that our increasingly politicized court system will see things the same way. It does speak to the weakness of the state's arguments that they resort to these lame arguments.


BREAKING: We just filed a motion asking the Ninth Circuit to lift the stay in our lawsuit challenging California's ban on so-called "assault weapons," which, if granted, would allow the judgment striking down the ban to go into effect. Read it here: https://www.firearmspolicy.org/miller

Stole the image from a reddit post, but it appears to be an accurate summary.

The losers in Sacramento are throwing a temper tantrum in response to the ruling in Bruen. Now that they have to issue carry permits, they want to make basically everywhere a "sensitive place".

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