I am sitting at Gate A6 at the sprawling Indianapolis International Airport. With two hours to kill before my flight and being properly neutered this side of security, I have nuzzled up to my computer and a glass of airport whiskey.
Let the pontificating begin!
I am here in Indianapolis at the NRA’s annual convention. Last year it was in Dallas; next year we are meeting in Nashville! (Actually kinda looking forward to that!)
I bypass the show each year (it is basically a smaller recreation of SHOT in Vegas)… but I do make a point of going to the NRA’s Legal Seminar. This eight-hour event takes care of some of my continuing education requirements, as well as doing a pretty good job of keeping everyone in the legal community up to speed on the developments of 2A jurisprudence.
For those of you who read my blog regularly and, more importantly, for those of you who purchased standard capacity magazines during “Freedom Week”… Judge Benitez is getting a lot of love here!
The morning speaker is typically a somewhat academic presentation. It is actually one of my favorite parts. Once that is done, speakers get into the nuts and bolts discussions on what we can do to help out clients, usually with administrative law stuff.
This year the two morning speakers were George Mocsary and David Thompson. They coauthored a piece about the under-enforcement of the Second Amendment. Since they agree with me, they are clearly geniuses!
One of the things that has irked me for years (and incidentally Justice Clarence Thomas as well) is the use of “intermediate scrutiny” when determining the Constitutional validity of a gun-related statute.
(Quick primer: In establishment (religion) and free speech cases, the court uses a sliding scale to determine Constitutional validity of a statute that purportedly infringes on these rights. If the court determines the statute affects the core fundamental right, then the test is “strict scrutiny”… there must be a compelling state interest and no less restrictive alternatives… statutes subjected to a strict scrutiny analysis typically fail. If it does not restrict a core fundamental right then the court uses “rational basis”… essentially, there has to be a legitimate state interest and the statute is rationally related to that objective. Typically, anything can withstand this analysis. In the famous case of Heller v DC, Justice Scalia stated that the Second Amendment was a fundamental individual right and, thus, a court should not use rational basis.)
Well, I would like that articulated a little tighter… but it is what it is.
As a result, appellate courts have eschewed strict scrutiny for a “mid-level” or “intermediate level” of review. As a result, very few statues are overturned.
(If you have arrived here from our newsletter, continue reading here…)
For those of you who have been paying close attention, the upcoming Supreme Court case, New York Rifle and Pistol Association v New York, may clean this up once and for all.
Oh… and a complete aside, I got the opportunity to meet Brian Stapleton, the lead counsel on New York Rifle and Pistol Association, and we discussed our theories as to how the case will ultimately be decided. We were in agreement, which clearly puts him into the genius category as well!
One of the things that Professor Mocsary talked about was the malum prohibitum nature of gun control laws, and the idiocy associated with the belief that they would do anything to stop a malum in se crime.
He went one step further, though, and explored an interesting direction:
He rationalized that since malum prohibitum offenses target (or create a chilling effect on) law-abiding citizens, specifically citizens of a disfavored group by the controlling elites, this is, in effect, a form of cultural imperialism.
He has a solid point.
He also clearly has given me material for a future blog!