Minor Drug Violations

The GOAL office has begun to receive requests for information regarding past minor drug violations for persons applying for their License to Carry (LTC). Theses inquiries are a result of the law passed in 2008, Chapter 387 of the Acts of 2008 An Act Establishing a Sensible State Marijuana Policy.

Basically, this law made possession of one ounce or less of marijuana a civil offense rather than a criminal offense and punishable by a one hundred dollar fine. The most common question we receive is will this new law downgrading the offense help those who have been disqualified for such past offenses. The answer is, we simply don’t know yet.

The problem with determining an answer is that there are now two conflicting laws. The first is of course the law regarding the LTC, Chapter 140, Section 131. Within that section is a list of permanent disqualifiers among them is: “a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C” This particular disqualifier is not even reviewable by the Firearm Licensing Review Board established in GOAL’s 2004 reform bill. The key phrase in the Section is “a violation of any law” not just criminal law, but here is where it gets interesting.

Keep in mind that the gun law was established in 1998. Ten years later the state passes the marijuana policy law. In this new law it specifically states, several times, that offenders shall not be subject to any other sanctions or disqualifications other than the fine. (See the underlined below.) The law even goes so far as to prohibit listing such offenses in the Criminal Offender Record Information system.

So the question is which law prevails? We have a 1998 law that states any violation is a disqualifier and we now have a 2008 law that states this particular offense cannot be used for disqualification of any kind. There are two schools of legal thought here.

The first is that in some cases courts will side with the more specific law.

The second is that courts will go with the most recent law as it more closely represents the latest will of the people.

Unfortunately, we may have to wait for a court case to decide the matter as we can no longer rely on the state administration to accurately advise us on the law. Sadly, we have not had much luck in the State’s highest court understanding the current gun laws either.

As a side note, we do have great concerns on how this new law may affect the next generation of gun owners. If indeed the disqualifier in Section 131 eventually prevails and is maintained, it could cause serious issues down the road. With the decriminalizing of the minor possession, young people may not take it as a serious offense and later on realize that their civil right to keep and bear arms has been taken away. Regardless of the arguments for or against decriminalizing, this is yet another mess caused by the Massachusetts gun laws that needs to fixed before more harm is done.

Chapter 94C, Section 32L. Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions, provided he or she completes a drug awareness program which meets the criteria set forth in Section 32M of this Chapter. The parents or legal guardian of any offender under the age of eighteen shall be notified in accordance with Section 32N of this Chapter of the offense and the availability of a drug awareness program and community service option. If an offender under the age of eighteen fails within one year of the offense to complete both a drug awareness program and the required community service, the civil penalty may be increased pursuant to Section 32N of this Chapter to one thousand dollars and the offender and his or her parents shall be jointly and severally liable to pay that amount.
Except as specifically provided in ″An Act Establishing A Sensible State Marihuana Policy,″ neither the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may impose any form of penalty, sanction or disqualification on an offender for possessing an ounce or less of marihuana. By way of illustration rather than limitation, possession of one ounce or less of marihuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent. Information concerning the offense of possession of one ounce or less of marihuana shall not be deemed ″criminal offender record information,″ ″evaluative information,″ or ″intelligence information″ as those terms are defined in Section 167 of Chapter 6 of the General Laws and shall not be recorded in the Criminal Offender Record Information system.
As used herein, ″possession of one ounce or less of marihuana″ includes possession of one ounce or less of marihuana or tetrahydrocannabinol and having cannabinoids or cannibinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body. Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marihuana or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marihuana or tetrahydrocannabinol, or selling, manufacturing or trafficking in marihuana or tetrahydrocannabinol. Nothing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.

Buyer Beware

Every so often I include in my column a reminder to our members concerning the “Brook Trout” license plate. Quite often I run into people who proudly display the specialty plate on their car or truck. When approached they always tell me that supporting Fish and Wildlife programs is something they are happy to do. Unfortunately, I have to inform them that the money they paid for the special plate does not and never has gone to the Massachusetts Division of Fisheries and Wildlife. Most people always remark back that the plate has the FW right on it. Well, it certainly does, but that is a little bit of a misrepresentation or false advertising if you will.

Twenty-eight dollars of the plate fee actually goes to something called the Massachusetts Environmental Trust (MET). The remaining twelve dollars goes to the Massachusetts Department of Transportation. The MET website (www.mass.gov/eea/met) describes itself as follows:

Over 20 years ago, the Commonwealth of Massachusetts was sued by the federal government for violation of the Clean Water Act and pollution of Boston Harbor. State officials reflected on the process and began searching for ways to make this difficult period in Massachusetts environmental history a positive learning experience. In 1988 the federal lawsuit for violating the Clean Water Act in Boston Harbor was settled and the State Legislature established the Massachusetts Environmental Trust through Chapter 236, Section 7 of the Acts of 1988. The Trust was intially funded with $2 million dollars by the Legislature. The Trust is governed by a Board of Trustees appointed by the Secretary for Energy and Environmental Affairs.

The Trust originally focused on protecting the Massachusetts coastal zone and marine waters, but in the interim increased its geographic scope to include the water resources of the entire Commonwealth. In time, funds generated from violations of environmental law were put to use in remediation, outreach and environmental education efforts.

I would urge people who have one of these plates or are thinking about getting one to visit the MET website and educate themselves on just what they are supporting. For sure some of the grants may be things you support, just know you are not supporting the Massachusetts Division of Fisheries and Wildlife.

Massachusetts Supreme Judicial Court Issues Contorted Ruling in Powell Case

In late April of 2011 the Massachusetts Supreme Judicial Court (MassSJC) handed down its decision in Commonwealth v. Powell. This was a case of an 18 year citizen in possession of a handgun (firearm) without a Firearms Identification Card or a License to Carry. Gun Owners’ Action League (GOAL) filed an Amicus brief in the case in an attempt to point out the unconstitutional restrictions in Massachusetts law that prevents an adult aged 18 – 20 from possessing a handgun. In what is continuing to be a situation where the Commonwealth’s highest court either does not understand the law and/or is simply unwilling to apply United States Supreme Court (SCOTUS) decisions it ruled the following:

1.     The Mass SJC said in Powell that neither Heller nor McDonald made it clear that the Second Amendment was an absolute individual right.  Rather, the Mass SJC has ruled that Second Amendment rights are limited to only possessing firearms in the home for the SOLE purpose of self defense.  According to the Mass SJC, Heller and McDonald held only that the Second Amendment is only infringed where there is a complete ban on handgun possession in the home, or where a statute prohibits having a fully operational handgun in the home.

2.   The Mass SJC maintains that the Massachusetts gun laws to not represent an absolute prohibition for an 18 – 20 year to possess a handgun. The court contends that such a person can possess a handgun in the home with an FID Card.

Occasionally when you are in the business of following court decisions, you have to read one that simply makes your head hurt. The Powell decision is one of them. Anyone who knows Massachusetts gun law and has researched both of the recent SCOTUS decisions (Heller and McDonald) can only describe this decision as chaotic at best, as the Mass SJC decision contains arguments full of conjecture regarding the Massachusetts firearms statutes.

In one paragraph where the Mass SJC discusses the McDonald decision, the Court seems to insinuate that because the Justices in the plurality (Justices that joined the majority decision that is considered the legally binding holding of SCOTUS) could not agree on the mechanism for how the Second Amendment is incorporated through the Bill of Rights to apply to the States, that this difference between the Justices somehow adds “significance” to the SCOTUS statements regarding whether the rights under the Second Amendment were unlimited. Nevermind the fact that the plurality were in TOTAL agreement that the Second Amendment DOES fully apply to the States.

Take a look at the Mass SJC’s rationale:

The [US Supreme] Court concluded that the right "applies equally to the Federal Government and the States." Id. at 3050. The Court, however, was unable to agree on how the Second Amendment right applies to the States. Justice Alito, writing the plurality opinion concluded that the Second Amendment right is incorporated to the States through the due process clause of the Fourteenth Amendment. Id. In contrast, although he agreed that the Second Amendment is "fully applicable to the States," Justice Thomas concluded that the right "is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause." Id. at 3058-3059 (Thomas, J., concurring in part and concurring in the judgment). Of significance, the plurality opinion did not disturb the conclusion in Heller that a citizen's rights under the Second Amendment are limited.

This paragraph in the Powell decision is clear evidence that the Mass SJC is intentionally including irrelevant “disagreements” within the McDonald plurality in an attempt to cast suspicion on SCOTUS’s holding in McDonald.  What is clear from McDonald is that all of the Justices that joined in the plurality opinion, drafted by Justice Alito, agreed on bedrock issues:  1) US Citizens have a pre-existing (prior to the drafting of the Constitution and Bill of Rights), fundamental right to keep and bear arms under the Second Amendment, and 2) The fundamental Second Amendment rights apply equally to the US Government and all of the States in the Nation. How the various Justices got to the end result is frankly irrelevant; they concluded that the Second Amendment of the US Constitution applies to the States, period. 

So, it begs the question: why mention the “disagreement” on the mechanism of applying the fundamental Second Amendment rights to the States?  Why mention the mechanism at all if the outcome (Second Amendment applies to all States) is the same?  The answer:  because it makes it seem like the plurality opinion and central holding in McDonald is somewhat undecided or up for debate, when in actuality it is clear and settled. 

The second part of the Powell decision contends: Powell paragraph c. – General Laws c. 269, § 10 (h ) (1), makes it an offense to own or to possess a firearm, see note 3, supra, in one's home or place of business without obtaining an FID card pursuant to G.L. c. 140, § 129C.

It further states:

G.L. c. 140, § 129B (1). An FID card allows the holder to own or possess a firearm within the holder's residence or place of business, but not to carry it to or in any other place.

In this part of the decision the court continues to make the same mistakes it made in the Runyan decision.

First, with respect to c. 269, § 10 (h ) (1) it simply doesn’t say that. It actually states: Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished…

This may be a small difference, but it is certainly a meaningful one.  The exclusion from punishment for possession in the home is not in turn a license to buy a handgun, transport it to the range for practice, or to transport it to a gunsmith for repairs or anyplace else. Also, FID Cards are not “obtained” through Section 129C, they are obtained through Section 129B.

Section 129C also states very clearly: “The possession of a firearm identification card issued under section one hundred and twenty-nine B shall not entitle any person to carry a firearm in violation of section ten of chapter two hundred and sixty-nine and…”

Next, Section 129B (1) does not allow “the holder to own or possess a firearm within the holder's residence or place of business…” Actually Section 129B (6) specifically prohibits such possession unless the holder of said card is at a licensed club and accompanied by a holder of a License to Carry, a point which was specifically made to the Mass SJC in GOAL’s Amicus brief- in the Powell case:

140, 129B (6) A firearm identification card shall not entitle a holder thereof to possess: (i) a large capacity firearm or large capacity feeding device therefor, except under a Class A license issued to a shooting club as provided under section 131 or under the direct supervision of a holder of a Class A license issued to an individual under section 131 at an incorporated shooting club or licensed shooting range; or (ii) a non-large capacity firearm or large capacity rifle or shotgun or large capacity feeding device therefor, except under a Class A license issued to a shooting club as provided under section 131 or under the direct supervision of a holder of a Class A or Class B license issued to an individual under section 131 at an incorporated shooting club or licensed shooting range.

Another questionable part of the Mass SJC’s decision is their use of case precedent to support its decision and reasoning. In backing up their contention that an FID Card allows for the possession of a handgun in home they cite to three cases. These cases, Commonwealth v. Belding, 42 Mass.App.Ct. 435, 436-437 (1997), Commonwealth v. Walker, 17 Mass.App.Ct. 182, 185 (1983), and Commonwealth v. Seay, 376 Mass. 735 (1978) were all decided prior to the 1998 Gun Control Act. That Act changed and re-wrote the gun laws, including by adding the language in 140, Section 129B (6) cited above, that should have been referenced by the Mass SJC in the Powell decision.

Once again, Massachusetts gun owners are left with a decision of our highest state court that has left us with more questions than answers. While some of us fully expected the Mass SJC to spin the Heller and McDonald decisions, few people could have foreseen how unwilling the Court would be to properly and accurately apply existing state law. It appears that in an effort to dilute and limit the holdings of the highest Court in the United States, the Mass SJC has resorted to either ignoring or intentionally misinterpreting the written (as onerous and offensive as they may be) Massachusetts statues relating to firearm licensing, purchasing, and possession. 

As we predicted though, the fight for civil rights continues and GOAL will be on the frontline of that fight.

Voting For Someone

April 12, 2011

For quite some time I have heard nothing but complaints from voters all over the nation concerning the candidates on any given ballot. While there are certainly some politicians or candidates on the local level that voters get excited about supporting, the same cannot always be said for the higher offices.

Recently I asked a few people in casual conversation if they had ever voted FOR someone. The immediate response from most was – “Of course I have, I voted.” I clarified my question by asking them who was it that you actually voted FOR, not voted for candidate X because you were actually voting against the other candidate. Understanding my question better, the flood gates of complaints opened up.

Most everyone complained that they were sick of voting for the “lesser of two evils.” Still others voiced their frustration that there have not been any recent candidates that actually stood for their ideals. Far too many candidates in any party run to the center for election and then take off in different tangents after they are elected.

One of the fairly new issues with the Presidential elections is the invasion of the other party’s primary. In some states like Massachusetts voters have the right to vote in either party’s primary. In recent years there has been a strategy of voting in the opposition’s primary in an attempt to knock out their top candidate. For instance, in the last Presidential primary a host of voters invaded the Democrat primary in an attempt to unseat Hillary Clinton. For better or worse, the strategy actually worked. One of the major problems with the success of that strategy is that if it continues to work, it could lead to the deterioration of the American election process.

Many voters will admit that they only voted for someone to actually vote against the other candidate, the future of elections and who represents us could be drastically changed if that fine line is crossed. All one needs to do is look at the current sitting President to understand the dangers of completely flipping a system of voting. The result in the last election gave us a fringe Presidential candidate that actually won.

There is certainly a fringe sector of society that has been drooling over such an opportunity and it has proven very harmful to our nation. I can even remember the night of the election when national news anchors remarked that this is the first time they could recall a candidate winning that was such an unknown entity. Of course had these people paid any attention to the facts that were so obviously out there they might have learned something.

In any case, the last Presidential election was the first perfect storm of the new election strategy. One could argue, I suppose, that this new strategy kept a particular enemy out of office. The problem still remains that the strategy resulted in an enemy that had no history that would have provided the experience necessary to run a country. Policies and politics aside, if we continue on a path that puts incredibly inexperienced and potentially incompetent people in the most powerful position in the world we are all in serious trouble regardless of our political leanings.

What this nation needs is true leaders to once again be supported for high office. It has been bad enough that we had become a nation of voters yearning for someone vote FOR. That frustration will morph us onto a path of destruction if we are not careful. The election of the highest office in our nation should be about electing the best of the best, instead we are speeding towards a system that elects the worst of the worst. Prior to the next Presidential election let’s work towards finding candidates we want to vote FOR and set this country back on the track to greatness once again.

Laws, Regulations and Policies Don’t Make Us Bulletproof

One of the most profound arguments in the Second Amendment debate that our opponents never seem to get is that no law will ever make us bulletproof. I suppose this case could be true for those who are not necessarily involved in the struggle directly, but support government interventions via other means. These could be in the form of restraining orders and the dreaded “Zero Tolerance” policies. Neither of which have ever saved a life, in fact it can be successfully argued that they have cost lives.

Despite the overwhelming evidence that more laws, regulations and policies (LRPs) won’t make us safer there is that sector of society that wants to put their collective heads in the sand and ignore the truth. No other state in the nation could be more proof of that than Massachusetts. In 1998, the legislature passed what has turned out to be the worst in the nation gun laws. Since then, the “get tough on guns” LRPs have resulted in a disastrous outcome. All one has to do is review the evidence at www.massgunlawreform.com/evidence.html and witness the drastic increase in violent crimes committed with guns in the last decade.

To a great extent, restraining orders and zero tolerance policies aren’t having a much better track record. While we can argue that restraining orders serve their purpose to an extent, in severe cases they do nothing to actually protect the potential victim. Since law enforcement can only get involved if a protection order is violated it is often too late and the only thing left to do is the paperwork.

The point is that no official government document is going to stop a bullet, knife, baseball bat or anything else for that matter. If there is truly a need for someone to get a protection order then shouldn’t that be only the first step? People who are in fear of their safety, and perhaps their lives, should not be relying on a piece of paper. Both the government and the petitioner are being irresponsible if they believe otherwise.

The same is equally true of these so-called zero tolerance policies most commonly found in schools and many work places. The one alarming fact with these policies is that if a killer targets you at one of these places, you have a near zero chance of surviving.

The common theme here is that LRPs may make some feel good or safe, but what happens when they eventually fail to stop an attack? The sad answer is normally one or more victims with grieving families looking for answers.

It is unfortunate that in our modern society here in Massachusetts, criminals, psychopaths, etc. can virtually count on a potential victim or even a group of victims to not fight back. People have become so reliant on government that far too many have completely surrendered their own responsibility.

Ultimately, our lives and safety are ours to defend or lose. Any kind of so-called preventive or responsive measures offered by our government should only be considered complimentary to our own ability or at least efforts to defend ourselves. By the way, that includes escaping the situation. The logic has always escaped me when, for instance, a school policy is to hide under a desk in case of attack when there is a perfectly good first floor window to escape out of. If your life depends on escaping then do it, but if your life depends on you or a group to fight back in order to survive than people need to start doing that too.

Sadly, adults and most importantly children through LRPs are being discouraged from doing what used to come naturally. Even our own Massachusetts Attorney General has been in the media telling the public that the state does not encourage self help! What sort of message does that send to the public? Perhaps more importantly, what message has that attitude sent to the criminal element? Unfortunately, we already have witnessed the answer to the latter.

It is clear we have a lot of work to do here in the Commonwealth in reforming the existing LRPs, but I am afraid that is only going to part of the job. The other part might even be more difficult to change and that is the social attitude towards defending ourselves. Somehow we must gather together and re-teach modern society that self defense and the defense of others is not violence - it is rather the means to stop violence.

One of the constant battles Second Amendment advocates face is the constant barrage from our anti-civil rights counterparts that kids and guns don’t mix. These are the same people who were successful years ago in passing federal and state legislation banning firearms from schools. This was done under the guise of providing a “safe” learning environment. The unfortunate reality is that I never heard of a student initiated school shooting until after those laws were in place, but that is a discussion for another column.

The main point I want to make in this column is that there is a growing movement in this country to expect less of our youth. Yes, you read it correctly … a movement to expect less. The firearms issue is just one example. How many times have you read a paper or turned on the news and there is a story about a teen driving accident tragedy? Normally within a very short time there will be a public outcry for raising the age for driver’s licenses.

The same problems have occurred with things like high school diplomas. Not too many years ago several states including Massachusetts began coming up with special testing requirements as a mandate to get the diploma. While there are arguments on both sides of that issue, the best one I heard against it was “Why don’t we just make the diploma mean something again.”

I also hear many schools are doing away with the honor roll because it makes other kids feel bad. What is the message there? Stop giving accolades to kids who do well and live up to high expectations so the kids who slack off don’t feel bad? Once again, expecting less.

Modern society has placed such an enormous safety net under our youth that one has to wonder how these youngsters would do if they were ever faced with real challenges. I would normally say real life challenges, but I’m not sure that applies anymore. Most American kids have no real knowledge of living under circumstances where their family’s survival depended on their daily input and ability to contribute to the best of their ability.

Getting to the point here, we have become a nation that coddles our children to the point of doing them harm.
Every time there is a problem with schooling, driving or anything else that pertains to the irresponsible actions by youth, modern society quickly moves to pass laws or policies that expect less of them and broaden the safety net. The end result is that these laws and policies actually encourage more poor results or behavior. By encouraging them not to live up to high standards we are setting forth a spiraling prophecy of failure.
Every time we raise the age limit for something, every time we add something else as a hurdle to obtain something we are actually sending the message that we expect less of them. Because these actions are not holding them accountable for their actions, but rather giving them more time or something else, we are actually harming them. As society continues to raise age limits and lower expectations we are beginning to produce an ever increasingly less mature young adult.

A case in point, in my father’s generation youngsters brought their guns to school. Some men have told me that they used to drop them in the principal’s office. Others say they simply put them in the coat rack in the back of the classroom. These people used to use them for school shooting teams or even hunting to and from school. Every one of these people I have talked to all say there was never a problem. In my own generation we were not allowed to have guns in school, but every boy I knew, including myself, all carried their Boy Scout knife, or in high school years a buck knife. Again, we never saw a problem throughout all of those years. Move to today and try to do either of those and it would most likely make the national news.

The one holdout to these societal trends can be found at our local shooting clubs. Ask a youth coach or a parent about a youngster that as entered the world of shooting sports. Nearly every one of them will tell you that it has changed the life of the young shooter.

These young people come into a world where they are trained and trusted to handle firearms and to do so safely. They are held to a higher standard than their non-shooting peers and always rise to that standard. These new shooters often find a sense of pride and maturity that they were not aware of prior to taking part in these programs.

In the summer of 2009 Governor Patrick’s administration held a public hearing to bring public shooting events and training programs under the control of the state bureaucracy through crippling regulations. Nearly a hundred citizens showed up to testify against the proposal. Many of these people were parents and coaches who related stories about how the shooting sports changed the lives of kids around the state. The message was clearly sent that they did not want more restrictions on these programs. They did not want the state to tell our young shooters that we expect less of them. It was because these programs expected more of kids that the kids were stepping up and living up to the higher expectations both on the range in and life in general.

Whether it is smallbore shooting, high power or even hunting with a firearm, every time we teach a child how to act responsibly and hold them to that standard we all benefit from the outcome. The rest of society needs to learn from our success with youth. By expecting more of them we get more, by expecting less we get what we deserve. If society does not learn from us and begin holding our youth to a higher standard will we eventually create a generation that is not responsible enough for freedom?

SCOTUS Drops the Hammer on Anti-Second Amendment Arguments 

“… this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” – Justice Alito 

Read the full decision here.

On Monday, June 28, 2010 the Supreme Court of the United States (SCOTUS) handed down one of the most important civil rights decisions of the new millennium. In what has become known as the McDonald decision, SCOTUS held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. It further held that the Second Amendment right is fully applicable to the States.

While citizens celebrate the affirmation of our civil rights by the nation’s highest court, it is just as important to note the arguments that the McDonald decision formally denounced. In the first day after the landmark decision, opponents of the incorporation of the Second Amendment have been working furiously to convince the press that nothing will change. If that is indeed the case, then why did they fight so hard against the ruling? Why did they try to convince the Court that incorporation of the Second Amendment would lead to a doomsday scenario?

Locally and nationally, the anti-civil rights proponents are doing their level best to paint a picture for the country that most, if not all, existing gun laws will survive McDonald. They continue to quote a “sound bite” from the decision that originates from the Heller case, “the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” What they conveniently fail to tell the public is what the paragraph read as a whole really states that laws regarding felons, the mentally ill and certain commercial sale provisions will likely survive.

(Alito Page 39) - It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

The Heller decision, reaffirmed by McDonald, also stated that the Second Amendment “protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”

More of the ruling that the opposition does not want to bring to light is that McDonald clearly and soundly dropped the hammer on all of the old tired arguments against the Second Amendment. In the written opinion the Court strongly rejected arguments such as the international recognition, the interest balance argument, the local rule argument and more.

Below you will find the references to the arguments that were crushed by this ruling. While some of the reading can be a little dry, it is important for lawful citizens to be armed with the facts about the case. With this information you will be able to educate the general public and legislators on the strength and facts of the ruling.  

One more thing that anyone reading the majority opinion of the Court should keep in mind, it is clear that the Court has ruled in a very strong manner that all of this debate is actually about two separate distinct issues – Civil Rights and Public Safety. Sound familiar?

Note: “Municipal Respondents” refers to those that were involved in the case that were opposed to the incorporation and affirmation of the Second Amendment as a civil right.

International Recognition Argument  (Page 33, Alito) - Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” Brief for Municipal Respondents 9 (quoting Chicago, B. & Q. R. Co., 166 U. S., at 238). According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment. Id., at 21–23.

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases. See Duncan, 391 U. S., at 149, and n. 14. And the present-day implications of municipal respondents’ argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world. 

Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substantive as opposed to procedural rights. Brief for Municipal Respondents 10, n. 3. But even in this trimmed form, municipal respondents’ argument flies in the face of more than a half-century of precedent. For example, in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 8 (1947), the Court held that the Fourteenth Amendment incorporates the Establishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches. If we were to adopt municipal respondents’ theory, all of this Court’s Establishment Clause precedents involving actions taken by state and local governments would go by the boards. 

Balance Theory (Page 35, Alito) - Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13–17.  

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon, 468 U. S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona, 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id., at 542 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases . . . will return a killer, a rapist or other criminal to the streets . . . to repeat his crime”); Mapp, 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications. 

Local Rule and Experiment Argument (Page 36, Alito) - We likewise reject municipal respondents’ argument that we should depart from our established incorporation methodology on the ground that making the Second Amendment binding on the States and their subdivisions is inconsistent with principles of federalism and will stifle experimentation. Municipal respondents point out—quite correctly—that conditions and problems differ from locality to locality and that citizens in different jurisdictions have divergent views on the issue of gun control. Municipal respondents therefore urge us to allow state and local governments to enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense. Brief for Municipal Respondents 18–20, 23. 

There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two track approach to incorporation. Throughout the era of “selective incorporation,” Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. See, e.g., Roth v. United States, 354  

U. S. 476, 500–503 (1957) (Harlan, J., concurring in result in part and dissenting in part); Mapp, supra, at 678–680 (Harlan, J., dissenting); Gideon, 372 U. S., at 352 (Harlan, J., concurring); Malloy, 378 U. S., at 14–33 (Harlan, J., dissenting); Pointer, 380 U. S., at 408–409 (Harlan, J., concurring in result); Washington, 388 U. S., at 23–24 (Harlan, J., concurring in result); Duncan, 391 U. S., at 171–193 (Harlan, J., dissenting); Benton, 395 U. S., at 808–809 (Harlan, J., dissenting); Williams v. Florida, 399 U.S. 78, 117 (1970) (Harlan, J., dissenting in part and concurring in result in part).  

Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” Brief for State of Texas et al. as Amici Curiae 23.

stare decisis: Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts. To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.  

Litigation Expense Argument (Page 38, Alito)- Municipal respondents and their amici complain that incorporation of the Second Amendment right will lead to extensive and costly litigation, but this argument applies with even greater force to constitutional rights and remedies that have already been held to be binding on the States. Consider the exclusionary rule. Although the exclusionary rule “is not an individual right,” Herring v. United States, 555 U. S. ___ (2009) (slip op., at 5), but a “judicially created rule,” id., at ___ (slip op., at 4), this Court made the rule applicable to the States. See Mapp, supra, at 660. The exclusionary rule is said to result in “tens of thousands of contested suppression motions each year.” Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 Harv. J. Law & Pub. Pol’y, 443, 444 (1997). 

Interest Balanced Argument (Page 39, Alito) - Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted). 

As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from the late 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26–27 (citing Kalodimos

v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984));see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. 

The Second Amendment is Different (Page 40, Alito) - Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments “because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Brief for Municipal Respondents 36–37. Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were “valued for[their] own sake.” Id., at 33. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller, i.e., that the scope of the Second Amendment right is defined by the immediate threat that led to the inclusion of that right in the Bill of Rights. In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.

Read the full decision here.

Related. Civil Rights Win! Statement from GOAL Executive Director Jim Wallace

When tragedies like the Tucson shootings occur there is always a predictable pattern to what will take place in the aftermath. The various media outlets will rush to be the first to get us breaking elements of the story. As the hours pass they always have to recant the mistakes from their original claims. Then eventually the blame game starts to roll in. Then of course there is the “call for action”.  Somewhere in the mix a few sincere people will remember to honor the victims and perhaps the first responders who dealt with the scene. The only thing that was totally different in the Tucson aftermath was a President holding what ended up looking more like a pep rally in place of a memorial service.

The other very unfortunate piece of the timeline is that afterwards there seems to be volumes of evidence regarding the perpetrator. A long line of people in and around the life of the assailant will suddenly look for a microphone to tell all they knew about his insane behavior or past actions. In just a few days we all learn about how all the warning signs were there but no one ever acted on them. The old saying that hindsight is 20/20 doesn’t seem to quite cut it in most of these cases.

Whether it is Tucson, Virginia Tech, Fort Hood or even going back to the Edgewater “Mucko” tragedy here in Massachusetts there is always one very common denominator – severe mental health issues. There is of course the Fort Hood attack which was more related to terrorist actions than anything else, but it is quite clear he wasn’t quite right either. All of the perpetrators had mental issues that the media and others say should have prevented them from having access to a firearm. What is surprisingly missing from the national debate is why were these people walking around free to have access to us, the general public?
I have attempted to insert this issue into the debate during many a media interviews. Inevitably I get the question – Do you think these people should have access to firearms? The answer is obviously of course not. The answer as it turns out is an even bigger problem to tackle then who should have their rights removed due to a criminal arrest or conviction.

For many decades there has been a constant debate on what crimes should be included as permanent prohibitions on access to firearms. There are some who have even argued that simple arrests rather than convictions should be part of that debate. As tenuous as that battle has been at least there is something tangible to debate, of course leaving out the “suitability” issue which is a completely separate problem. As for the convictions there is usually a clear record that the person did this or that and a debate ensues as to that particular act. The mental health issue is easily a hundred times more complicated and thus the dilemma.
Perhaps the greatest hurdle in determining mental health disqualifiers is government access to personal health records. As gun owners we can attest to the need for keeping personal information out of the hands of an overreaching government. So the question becomes at what level of mental health treatment does the public/government have the right to know about? Is it someone who has been involuntarily committed to a facility and a court has declared them a danger? What if they have not been committed, but have been under treatment? What if they just needed some counseling and for what?

With all this there is always that point at which most adults can agree that a person committed or diagnosed with “X” should not be walking the streets and be given the opportunity to harm themselves or others. Sadly as soon as that agreement is reached in a conversation about the issue reality sets in. Quickly the talk will move forward as to who makes the decision, who has access to the records, what will be done with those records, etc. and the path to a solution quickly evaporates.

While it may sound like tin foil hat talk, people simply don’t trust their government even at the most basic levels. Sadly the government continues to reinforce that sentiment. All one has to do is remember how our returning troops were treated recently. Remember how our government wanted to automatically disqualify any service member who sought counseling. That action was a clear case of how government can’t be trusted with certain information nor to do the right thing with it. So where does this leave a society looking for answers and solutions? 

First, it explains a little about why some politicians and others quickly run to the blame game and calls for banning objects. Because the true solution is going to be hard and modern political leaders and the media rarely have the patience to take on such a cumbersome task.
Perhaps the tougher question for Americans is how much freedom and privacy are we willing to give up in an attempt to stop these rare tragedies? Any level of which would indeed only be an “attempt” since there is no definitive way to make sure events like this don’t ever happen. The answer, or at least part of it, should be that government should do everything it can to keep citizens safe from maniacs BEFORE asking us to give up the slightest bit of freedom.

Tragedies like this put Americans in a very difficult situation. They create a time and need for very strong honest leadership at our highest levels of government. Perhaps the toughest question in this entire issue is do any such leaders even exist anymore?