Reporting On So-Called Second Amendment Preservation Ordinances Is Wrong; Threats of Violence From Militias

Here in Oregon, pro-gun extremist militias are pushing some local ballot measures they call "Second Amendment Preservation Ordinances" which would give county sheriffs unprecedented power which are constitutionally reserved for judges, to interpret gun laws themselves and choose whether or not to enforce them based on their own opinions about what the Second Amendment protects.

From Ceasefire Oregon's Executive Director, Penny Okamoto, as cross-posted from the Ceasefire Oregon blog:

On November 2, 2018, Oregon Public Broadcasting published an inaccurate and inflammatory article about militia-backed ballot measures called “Second Amendment Protection” ordinances, or SAPs. These measures are appearing on some county ballots in Oregon. The article was repeated on the November 6, 2018 OPB morning radio broadcast.

Ceasefire Oregon reached out to the article’s author, Jonathan Levinson, and to OPB with the following email. If you wish to express concern or to ask that a correction be published today, please call OPB at 800-241-8123.

No voter should ever be subjected to threats of violence. Publishing these threats could intimidate voters or suppress voter turn out. OPB should have reported this to law enforcement, not given violence a public platform.

Dear Mr. Levinson,

Ceasefire Oregon is deeply concerned about several aspects of your November 2, 2018 article, “Sanctuary Cities For Gun Rights? Oregon Militias Try New Political Tactics.” First is the implied violence from Tom McKirgan, who claims membership in Oregon militias. Mr. McKirgan, a supporter of ballot measures for Sanctuary Cities for Gun Rights, admitted the militias are willing to engage in physical conflict if they do not achieve their goals on November 6. (“And if we have to fight physically to do it we will,” McKirgan said. “It’s just that simple.”)

We believe no voter should ever be subjected to a threat of violence. We question the wisdom of Oregon Public Broadcasting allowing a member of the Oregon militia (or anyone) to be quoted as saying that groups will “fight physically” if a voter does not agree with a supporter of a ballot measure. This statement is particularly concerning because the ballot measures could effectively place militia members or supporters of the militias in control of county law enforcement. As you know from your own October 30 article which featured Mr. McKirgan, he spent seventeen years in law enforcement and is a member of Oregon militias. Yet you chose to include his implied threat conspicuously as the last statement–without any comment or pushback–so readers are left with this thought in their memories.

Violent rhetoric never deserves a platform, especially not in the aftermath of bombing attempts and the brutal shooting massacre at the Tree of Life Synagogue in Pittsburgh.

In addition, we would like to address the inaccuracies and implied bias in your article. We urge you to address these publicly. We have provided corrections with explanations and citations.

• Second Amendment Protection (SAP) measures (referred to in your headline as “Sanctuary Cities for Gun Rights”) are not lawful.
  • SAPs clearly attempt to give county sheriffs the ability to amend firearm-related laws. According to Oregon law, ORS 166.170, that power rests with the Oregon legislature.1
  • In July 2018, Grant County Judge W. D. Cramer ruled2 that a Grant County SAP petition violated Oregon’s firearm preemption law (ORS 166.170).
  • SAPs attempt to require county sheriffs to “determine whether any law or regulation pertaining to the right to bear arms or related rights violates the U.S. or Oregon Constitution.” Local officials are not Supreme Court justices and do not have the authority to interpret any part of the US or Oregon Constitutions.
  • Constitutional law expert, Charles Hinkle, was quoted in a 2015 interview3 with “The Huffington Post” about the Coos County SAP.  Mr. Hinkle stated that, under the Coos County SAP, Coos County Sheriff Zanni “would be violating his oath of office by enforcing a county ordinance that is contrary to state or federal law. ‘Of course local officials can’t decide what laws are constitutional. That’s why Kim Davis went to jail,’ Hinkle told the Huffington Post.” Mr. Hinkle’s remarks refer to the inability of sheriffs to act as US Supreme Court Justices.
  • In fact, in your prior article, your cite Douglas County Sheriff John Hanlin’s admission that “interpreting the Constitution is not part of his job or something that he’s qualified to do.”
• The Second Amendment is not an unlimited right.
  • Tom McKirgan stated (and you failed to correct his comment), “If you look at the Second Amendment where it says that it ‘shall not be infringed,’ that’s exactly what it means — our founders meant that.”
  • The late Justice Antonin Scalia’s ruling on the Heller decision clearly stated4,  “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
  • In the same opinion, Justice Scalia continued, “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.”
  • Justice Scalia clearly stated that the Second Amendment is not an unlimited right and that laws can be enacted that will prevent firearms from being accessed by people who would be harmful to self or others.
• SAPs are not protected by the Tenth Amendment.
  • The Supreme Court ruled in Printz v. United States (1997) and New York v. United States (1992) that the Tenth Amendment prohibits the federal government from commandeering state governments to assist in enforcing federal law.5
  • Enforcement of federal law is the responsibility of federal law enforcement officials. Therefore, state and local police cannot be forced to detain a person merely to question that person’s U.S. citizenship status.
  • The Tenth Amendment does not give Oregon county sheriffs authority to ignore state laws or the laws of the Oregon Constitution.
  • The Oregon Firearm Safety Act (background checks for gun sales), laws prohibiting guns for stalkers, and the law providing for Extreme Risk Protection Orders are Oregon state laws, not federal laws. There is no Constitutional protection (federal or state) extended to county sheriffs to relieve them from their duty to enforce Oregon laws or allowing them to enact an initiative supporting such actions.
• SAPs have been ruled to be administrative in nature and, therefore, not the proper subjects for the initiative process.
  • SAPs attempt to change who interprets laws; they do not make new laws. Therefore, SAPs are administrative and not the proper subjects of the initiative petition process.
  • Judge W.D. Cramer ruled6 that the Grant County SAP, measure 12-72,  ran afoul of the initiative petition process under the Oregon Constitution, Article IV, Section 7 which states that petitions can only make new law.

Ceasefire Oregon was disappointed by the bias shown in your statement: “In a state where Democrats in Portland and Salem have used their control over all the major branches of government to push stricter gun laws, giving local officials control over enforcing the laws could gain traction.”

• People throughout the state voted for Democrats, not just in Portland and Salem.
• Your statement shows bias against Portland and Salem, and implies that voters in those cities do not deserve the same voice as voters in other parts of Oregon.
• Democrats have been elected by a majority of the citizens of Oregon. The will of the voters should not be dismissed because the Oregon militias disagree with the outcome of the vote.
• Your statement is biased against those who support effective gun laws. A vast majority of Oregonians, gun owners and non-gun owners alike, support stronger gun laws. In fact, according to a Benenson Strategy Group poll taken in 2015 during consideration of the Oregon Firearm Safety Act (SB 941), 87% of voters including 83% of gun owners supported background checks for firearm sales. The percentage of gun owners who support background checks has only increased throughout the country since 2015. Background checks for gun sales are now supported by 95% or more of gun owners queried in the 2018 Quinnipiac Poll and the November 2017 Gallup Poll.
• The gun violence prevention laws passed since 2015 are also popular. According to a March 2018 Quinnipiac poll, 89% of voters support Extreme Risk Protection Order laws (SB 719)  and 91% support prohibiting convicted stalkers from purchasing or possessing firearms (HB 4145).
• Clearly, voters support strong, effective gun laws and Democratic legislators have been working for years to pass laws that reduce gun violence.

Oregonians need clear and unbiased reporting on this issue. If passed, SAPs will usurp power from the legislative and judicial branches of counties, and leave citizens unsure of the processes of their own government. If a sheriff interprets a law, to whom does a citizen go to enforce a direct violation of that law? Who will have checks on the county sheriff? Will the county sheriff decide to determine the constitutionality of all the cases of the US Supreme Court? Will the sheriff decide to disallow immigration? Abortion? Voting?

The Second Amendment is already well protected by the gun lobbies and the US Supreme Court decisions Heller and McDonald. SAPs are an attempt by militias and the gun lobby to exert power over the executive branch of county and state government. Issues as grave as these deserve accuracy and fairness.

1. The law is well known to at least one of the backers of SAPs, the Oregon Firearms Federation, who used the firearm preemption law (ORS 166.170) in 2011 in a lawsuit that forced Oregon colleges to allow people with concealed carry handgun licenses to carry loaded, hidden guns onto Oregon University System campuses. Now, that group is deliberately flouting the firearm preemption law.
2. “The plain reading of measure 12-72 violates this statute [ORS 166.170] and by definition enters into an area that by law is not of county concern.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter ruling, July 29, 2018.
3. https://www.huffingtonpost.com/entry/oregon-county-second-amendment-gun-laws_us_5638fcdee4b027f9b96a4ddc
4. https://www.law.cornell.edu/supct/html/07-290.ZO.html
5. https://www.oyez.org/cases/1996/95-1478
6. “Further [the measure] contains provisions that are not legislative in nature and; therefore, not proper for an initiative by definition.” Grant County Circuit Case No.18CV19251, Judge W.D. Cramer, Jr., letter ruling, July 29, 2018.
7. https://codes.findlaw.com/or/oregon-constitution/or-const-art-iv-sect-1.html

UPDATE (11/7/18): Unfortunately, 8 out of the 10 SAP measures passed. They will almost certainly be challenged in court.

David S. Cariens: Now Suburban Denver: When Is The Right Time?

The following is a guest blog post from David S. Cariens, Jr., a retired CIA Intelligence officer who is the author of a book, A Question of Accountability: The Murder of Angela Dales, which examines the 2002 Appalachian School of Law shooting of the mother of Cariens' granddaughter in Virginia.  Mr. Cariens is also the author of an anti-gun violence blog, A Sense of Security, which examines the issue of gun violence in the United States, especially when it comes to school and university shootings, like Virginia Tech.  

The posting below is a cross-post from A Sense of Security, with his permission:

Following the Tuscon shooting that killed six and seriously wounded 12 others including Representative Gabriele Giffords, members of the Brady Campaign asked to meet with House Majority Leader John Boehner to discuss ways to curb gun violence. Boehner said that “now is not the right time.” On the fifth anniversary of the Virginia Tech shooting Brady Campaign officials asked for a meeting with La. Sen. Vitter to discuss a bill he had introduced making it easier for the mentally ill to buy guns. Vitter was too busy.

Congressman Boehner isn’t too busy to visit tanning booths and Vitter found time to frequent New Orleans prostitutes.

Now we have 12 dead and 58 wounded in a movie theater in suburban Denver. So when is the right time to discuss ways to keep guns out of the hands of convicted felons, convicted domestic abusers, terrorists, and mentally ill people who are a threat to themselves and others?

The guns rights advocates’ assault on the First Amendment rights of freedom of speech and dialogue with elected officials has been blistering and deadly. With rare exception, politicians are so afraid of the National Rifle Association they won’t even talk to people looking for ways to curb this epidemic of violence.

Following the massacre at Virginia Tech, a UCLA Professor Douglas Kellner monitored coverage on the Sunday news shows on all the major networks. The results debunked claims of liberal media bias. What he found was a feeding frenzy of right wing, pro-gun advocates. Only one gun control advocate spoke, and that was just for a few moments on ABC’s “Good Morning America.”

So, when will our elected officials respect the First Amendment as much as they fear the Second? When will they engage in a dialogue?

Two Great Pieces From The New Yorker

How extreme is the gun lobby agenda to get guns everywhere?  They have a clear scheme for more guns, in more places, for more people, no matter how unpopular or dangerous.

As evidence, consider the following blog post from Susannah Griffee at the New Yorker:  "Guns, Everywhere":
http://www.newyorker.com/online/blogs/newsdesk/2012/04/guns-everywhere.html#ixzz1sjm7Gvoa

From the blog post:

The United States has the highest rate of gun ownership by civilians in the world. Depending on the state, guns may be allowed in churches, on college campuses, and even in bars. In this week’s New Yorker, Jill Lepore writes about the powerful gun lobby and the consequences of America’s attachment to deadly weapons. Below, a look at some of the more unusual—and, arguably, more dangerous—gun laws passed in recent years, and the states that passed them first:

Go to the post.  There you will see the extreme nature of the gun lobby.  What states currently allow for, and when did they start to allow for:

• Guns in Bars
• Guns in Churches
• Guns on College Campuses
• Guns at Work

The article gives years, names states, and some "fun facts" about those movements.  Makes me sick.  And now, in my state (Oregon), the gun lobby is pushing for guns in grade schools!

As you see in the excerpt above, Griffee links to an article by Jill Lepore, entitled "The Lost Amendment."

From the article by Lepore:

The debate over the Second Amendment has been fierce and terrible, with bad arguments on both sides, and bad will all around. It began in the nineteen-sixties, when there was a great deal of violence and much concern about it. It took another turn on Friday, when, at the N.R.A.’s annual meeting, in St. Louis, Newt Gingrich said, “The Second Amendment is an amendment for all mankind.”

As I wrote in this week’s New Yorker, no amendment received less attention in the courts in the two centuries following the adoption of the Bill of Rights than the Second, except the Third (which dealt with billeting soldiers in private homes). It used to be known as the “lost amendment,” because hardly anyone ever wrote about it. The assertion that the Second Amendment protects a person’s right to own and carry a gun for self-defense, rather than the people’s right to form militias for the common defense, first became a feature of American political and legal discourse in the wake of the Gun Control Act of 1968, and only gained prominence in the nineteen-seventies. A milestone in its development came when Orrin Hatch, serving on Strom Thurmond’s Senate Judiciary Committee, became chair of the Subcommittee on the Constitution. Hatch commissioned a history of the Second Amendment, resulting in a 1982 report, “The Right to Keep and Bear Arms,” which concluded, “What the Subcommittee on the Constitution uncovered was clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”

She then goes on to discuss the rise of the flawed "insurrectionist" interpretation of the 2A and the formation of citizen militias.

Wait...   If the Second Amendment is so crucial to the idea of "protecting our freedom," as Orrin Hatch and the NRA would have us believe, then why was it essentially ignored for the first 192 years of our country??  Somehow our country survived nearly two centuries without widespread home ownership of handguns, assault rifles, or anything beyond hunting rifles (and not really all that widespread even for those, in many areas).  Our leaders, including some really liberal ones (whom the ultracons associate with, gasp!, communist tyrants), did not take advantage of all those weaponless masses and form a tyranny.  So why is now any different?  I'll tell you why.  It's because the gun manufacturers have teamed up with the NRA to make more money by expanding gun ownership.  Never mind all the deaths.  Look the other way.  There's money to be made off of people's fears.

Lepore finishes her article as such:

In his remarks before the N.R.A. last week, Gingrich offered a human-rights interpretation of the Second Amendment. “A Gingrich presidency,” he said, “will submit to the United Nations a treaty that extends the right to bear arms as a human right for every person on the planet.”

The United States has the highest rate of civilian gun ownership in the world, twice that of the country with the second highest rate, which is Yemen. The United States also has the highest homicide rate of any affluent democracy, nearly four times higher than France or the United Kingdom, six times higher than Germany. In the United States in 2008, guns were involved in two-thirds of all murders. Of interest to many people concerned about these matters, then, is when the debate over the Second Amendment will yield to a debate about violence.

As she points out, America is far and away the murder capital of the world, for any nation not at war on its territory and, not coincidentally, the undisputed capital of firearms ownership.  If Gingrich and others like him had their way, they would spread that bloodshed worldwide.

We as a country already labor under 110,000 shootings a year.  With increasing gun ownership has come increasing shootings, and the more lax the gun laws in a state, the higher the number of fatal shootings.  These are undisputed facts from the statistics.  The world watches us in horror, wondering when our citizens will stop drinking the Kool-Aid given to us by the NRA, as the NRA pushes for ever more extreme laws (or removal of laws) to expand those horrors.  At some point, American legislators will wake up to the danger.  Already there is vast support (around 80%) for stronger gun regulation, in every poll I've seen.  Soon we will reach a tipping point when people tire of the bloodshed, speak out, and  demand that we return to sane gun regulation.

Videos on the Second Amendment by Teens

The winners have been announced for the 2012 C-SPAN StudentCam Competition.  In this annual competition, teenagers from around the nation and territories enter self-made videos wherein they explore some aspect of the Constitution.

From the competition's website:

C-SPAN is pleased to announce the 75 winning videos in the 2012 StudentCam competition! Congratulations to each of the winning filmmakers, whose documentaries competed among the record-setting 1,203 films that were received in this year's competition. Over 2,000 students from 43 states, Washington DC, and Puerto Rico competed, and we would like to acknowledge and thank all of the students and faculty advisors that participated. We hope the experience of creating your documentary was rewarding and, that those students eligible, will consider entering once again in the 2013 StudentCam competition. The film makers of the 75 winning documentaries will share in a total of $50,000 in cash prizes

( I couldn't figure out how to embed the videos directly or link the pictures, so you'll have to click on the text links to view them)

Here's one third prize winner in the middle school division:

 Wilson Ekern and Chris Moran

8th Grade

"An Armed Campus"

Farragut Middle School

Knoxville, TN

Charter Communications

Watch Interview

Here is one honorable mention from the high school division:

Laura Munoz, Tahiez Toro, and Nicole Richardson

12th Grade

"Guns & Coffee"

Sacred Heart High School

Los Angeles, CA

Time Warner Cable

One of the entries that didn't make the final 75 was one by two Oregonian boys, the Reese brothers, Oliver and Aleczander Reese, from Bend, Oregon. Last year, Oliver had been assaulted by another boy, then that boy had gotten hold of his father's gun and ammunition and made a hit list which included the Reese brothers.  They are in 7th and 10th grades.

I was happy to advise them on their video, and even make a brief appearance.

Video link:  http://studentcam.viddler.com/videos/watch.php?id=f0af7573

I applaud these bright boys and girls for their efforts, whether they won or not.  Understanding the Constitution is so important, and the Second Amendment in particular is one which brings out so much passion in Americans.  Clearly it is an amendment which is outdated, too ambiguous in its language, and clearly controversial. 

I look forward to next year's entries.