Dan Bidstrup

The law has recognized that a man’s home is his castle and he has a right to defend it.  Now, businssmen and employees in Colorado may get the same legal protection away from home.  Colorado’s legislature is considering House Bill 10-1094.  The intent of this bill is to expand the protection a homeowner has to use lethal force in defense of his home and family, called “the castle doctrine”, to businesses and dwellings other than home such as hotel rooms. 

Currently in the Judiciary Committee, the bill sponsored by Cory Gardner in the House and Ted Harvey in the Senate recognizes that criminals don’t exclusively attack us in our homes. In the summary it states the intent plainly:

“The bill extends the right to use deadly force against an intruder under certain conditions to include owners, managers, and employees of places of business.” 

The “certain conditions” are the belief by the employee or traveler that the other person is intent on committing a crime against the person or property involving force.  The legislation even stipulates that lethal force can be justified if the ” occupant or the owner, manager, or employee reasonably believes that the other person might use any physical force, no matter how slight, (emphasis mine) against any occupant of the dwelling or place of business.”  This removes the defense that “I was only going to push him.”, which is good because who could weigh the true intent of an assailant as they are coming toward you with outstretched arms?

Now, many will say “Our last defense will be gone!  A shoving match in Macy’s will end in bloodshed”.  As usual, this is hysterical hyperbole.  Who is going to face a trial by their peers with all its opprobrium, time spent and cost over an ill-fitting suit?  People who carry guns do so knowing the consequences of their use.  Like the Utah bill that seeks to clarify what is brandishing a weapon and what is showing a weapon to stop an attack, this bill seeks to clarify and reinforce our rights to self defense in a very litigious society.  Please drop a note or e-mail to your state legislators to cheer them on.  Who knows?  With work, Colorado may yet achieve a perfect zero on the Brady Scorecard.

By Anthony W. Hager

By Andrew Hyman

On March 2, the nine justices of the United States Supreme Court met to argue about whether the State of Illinois can constitutionally ban handguns in the City of Chicago. This landmark case will not only affect gun rights, but also will determine how the Supreme Court goes about telling states and localities what they can and cannot do under the Fourteenth Amendment of the Constitution.

By all indications, the Court will soon order Chicago to lift its handgun ban, but lawyers opposing the ban are deeply divided about which part of the Fourteenth Amendment the Court should invoke. The Court’s choice about which clause of the Fourteenth Amendment to use is critically important, because that choice will likely determine the high court’s path for decades to come.

One of the two clauses at issue from the Fourteenth Amendment is this one: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This clause comes into play because the Court already decided a couple years ago that the national government of the United States may not infringe a citizen’s right to keep and bear arms; the Privileges or Immunities Clause would extend these gun rights so that they also apply against states like Illinois.

The other clause at issue from the Fourteenth Amendment is this one: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” This clause essentially addresses HOW people can be deprived of life, liberty or property rather than WHETHER people can be deprived of life, liberty or property. Nevertheless, the Court has used a controversial interpretation of this clause called “substantive due process” in order to protect the right of free speech (enumerated in the Constitution), the right of abortion (not enumerated in the Constitution), and many others, potentially including gun rights too. The Court’s liberal justices have enjoyed using substantive due process instead of the Privileges or Immunities Clause because substantive due process gives the Court flexibility to apply against the states unenumerated rights that do not already apply against the national government of the United States.

During the March 2 arguments, Justice Stephen Breyer argued that this gun case would involve an extreme use of substantive due process, because there is not only a liberty interest in gun possession on one side of the case, but also there may be an interest in “life” on the other side of the case. Of course, the liberal Justice Breyer has in the past not been shy about using substantive due process to impose his own views with regard to competing liberty interests. However, he is correct that the conservative justices’ use of substantive due process in this gun case would be among its most controversial uses, portending an even more aggressive use of the doctrine from the liberal side. The losers would then be democracy, self-government, constitutionalism, the rule of law, and federalism.

During the arguments on March 2, conservative Justice Antonin Scalia strongly hinted that he would grudgingly use “substantive due process” in this gun case even though he thinks it is wrong, in order to mimic the liberal justices’ use of that doctrine. If that is how the cookie crumbles, then the Constitution will crumble a bit too.

As if Scalia’s comments were not dispiriting enough, the usually astute Chief Justice John Roberts announced that the Privileges or Immunities Clause would give liberal judges “a lot more flexibility than due process.” Roberts has it backward, though; as mentioned above, the judicially-created fiction of “substantive due process” allows liberal judges to apply rights against the states even including rights that are not already enforceable against the federal government, whereas the plain text of the Privileges or Immunities Clause avoids such limitless flexibility. — Obviously, a “privilege or immunity of citizens of the United States” cannot mean something that the federal government is free to violate.

Instead of mimicking the liberal justices, the conservative justices ought to show how a constitutional government actually works. The doctrine of substantive due process is a lie, and the Privileges or Immunities Clause means what it says.

By Brian McVicar –The Grand Rapids Press

IONIA — To the little boy’s mother, it was just a 6-year-old boy playing around.

But when Mason Jammer, a kindergarten student at Jefferson Elementary in Ionia, curled his fist into the shape of a gun Wednesday and pointed it at another student, school officials said it was no laughing matter.

They suspended Mason until Friday, saying the behavior made other students uncomfortable, said Erin Jammer, Mason’s mother.

School officials allege Mason had displayed this kind of behavior for several months, despite numerous warnings.

“I do think it’s too harsh for a six-year-old,” said Jammer, who was previously warned that if Mason continued the practice he would be suspended. “He’s six and he just likes to play.”

Jammer says her son isn’t violent, and there are other, more effective ways of teaching him not to make a gun with his hand.

“Maybe what you could do is take his recess away,” suggested Jammer, adding her son doesn’t have toy guns at home.

“He’s only six and he doesn’t understand any of this.”

Otis McDonald, 76, stands before the Supreme Court, which Tuesday heard arguments in his suit to overturn Chicago’s handgun ban

IBD Editorials

Gun Rights: Otis McDonald, 76, an Army vet who lives in a high-crime area of Chicago, thinks the Constitution gives him the right to bear arms to protect himself and his wife as he protected his country. We think so too.

On Tuesday, the Supreme Court heard arguments on behalf of four Chicago residents led by homeowner McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago’s three-decade-old ban on owning handguns.

In a 5-4 decision in 2008, Heller v. District of Columbia, written by Justice Antonin Scalia, the Supreme Court overturned the District of Columbia’s draconian, 32-year-old ban on the private ownership of handguns. Scalia wrote that an individual right to bear arms is supported by “the historical narrative” before and after the Second Amendment was adopted.

The joy of Second Amendment defenders was short-lived. A three-judge panel of the 7th Circuit Court of Appeals, led by Judge Frank Easterbrook, rejected subsequent suits brought by the National Rifle Association against the city of Chicago and its suburb of Oak Park, Ill.

According to Easterbrook, the Revolution was fought and independence won so that the Founding Fathers could write a Constitution with a Bill of Rights that applied only to the District of Columbia.

“Heller dealt with a law enacted under the authority of the national government,” he wrote, “while Chicago and Oak Park are subordinate bodies of a state.”

We’re all for federalism, but the U.S. Constitution is the U.S. Constitution. Surely he can’t be serious.

Alan Gura, the Alexandria, Va., lawyer who won the Heller case, has expanded the argument to include the 14th Amendment, adopted in 1868 to prevent infringement on constitutional rights by states and others concerned about newly freed slaves owning firearms.

Introducing the 14th Amendment to Congress, Sen. Jacob Howard of Michigan referred to “personal rights” such as “the right to keep and bear arms, ” explaining that his amendment would compel the states “to respect these great fundamental guarantees.”

In 2008, Texas Attorney General Greg Abbott filed an amicus brief on behalf of 32 states that also challenged the constitutionality of the D.C. ban. Now he represents a group of 38 states fighting the Chicago ban. “The Second Amendment right to keep and bear arms is a critical liberty interest, essential to preserving individual security and the right to self-defense,” Abbott explained.

Chicago Tribune columnist John Kass wrote in 2008 that in Chicago only two classes of people can possess firearms: “The criminals and the politicians.”

City politicians, he noted, used their influence to “become deputized peace officers so they can carry” or “often go around surrounded by armed bodyguards on the city payroll.”

Otis McDonald wants the same right to defend himself and his family. To deny him that right, city officials argue that repealing the ban will bring carnage in the streets. Yet in the forthcoming third edition of “More Guns, Less Crime,” John Lott points out that the Windy City’s murder rate fell relative to America’s other 50 largest cities before the ban and rose afterward.

In an essay Monday for FoxNews.com, Lott noted that after the D.C. gun ban was ruled unconstitutional, murders in Washington plummeted 25% from 2008 to 2009. D.C.’s murder rate, he reports, is down to 23.5 per 100,000 people, its lowest since 1967.

More guns do seem to mean less crime. And as Mr. McDonald insists, those who gave us liberty gave us the means and the right to defend it.

Steve Bartin

RICHMOND

Several gun bills that were expected to squeak through the General Assembly may be on their way to a firing squad instead thanks to maneuvering by a senior Democrat.

Sen. Henry Marsh of Richmond, who chairs the Courts of Justice Committee, announced Monday that he has created a new subcommittee to handle certain bills, including the gun measures.

That panel – stacked with four Democrats and one Republican – will have the power to kill legislation. That’s a departure from Senate tradition and could deny the gun bills a hearing before the full committee, which includes several pro-gun Democrats.

Marsh’s move comes near the end of what was expected to be one of the most gun-friendly sessions in recent years. Several bills expanding gun rights have already passed the Senate, but a number have not, including a House bill that would repeal the state’s limit of one handgun purchase per month.

Philip Van Cleave of the pro-gun Virginia Citizens Defense League labeled Marsh’s new panel the “Death Star” subcommittee, a reference to the planet-destroying behemoth of “Star Wars” fame.

“The anti-gun Democrats who control the Virginia Senate know that in the end they are outnumbered,” Van Cleave wrote in an e-mail. “So they are left to playing games with our constitutionally protected rights. While that is unconscionable, sadly it is not surprising.”

Marsh said the committee has already given considerable time to gun bills this session and has other items that need to be considered.

Democrats hold 10 of the 15 seats on Courts of Justice. But three of those Democrats – Sens. Creigh Deeds of Bath County, John Edwards of Roanoke and Roscoe Reynolds of Henry County – tend to vote with Republicans on gun rights bills.

This kind of action was foreshadowed last week when Senate leaders of both parties spoke publicly about mimicking the House of Delegates’ practice of killing bills in subcommittee.

Marsh’s actions set off a series of retaliatory shots Monday, with lawmakers in both houses bottling up bills.

The new Courts of Justice subcommittee is made up of Marsh and fellow Democratic Sens. Janet Howell of Fairfax County, Louise Lucas of Portsmouth and Linda “Toddy” Puller of Fairfax County.

Its lone Republican is Sen. Fred Quayle of Suffolk, who expressed some confusion about how the subcommittee will function, but not its composition. “Obviously, the committee is slotted to people who generally are opposed to gun measures,” he said.

In the past, Marsh has unsuccessfully advocated for closing the so-called gun show loophole by requiring criminal background checks on buyers before a private gun sale can be completed.

Among the gun bills already approved by the Senate are a measure to allow individuals to carry concealed handguns in restaurants that serve alcohol so long as they don’t drink, and one that would permit people to keep concealed handguns in their vehicles if stored in a locked container.

Both could be voted on by the Republican-controlled House this week.

Gov. Bob McDonnell has said he would sign legislation repealing the one-gun-a-month limit.

The new subcommittee could decide that bill’s fate when it meets Thursday.

By GREG BLUESTEIN
Associated Press Writer

Dale Welch recently walked into a Starbucks in Virginia, handgun strapped to his waist, and ordered a banana Frappuccino with a cinnamon bun. He says the firearm drew a double-take from at least one customer, but not a peep from the baristas.

Welch’s foray into the coffeehouse was part of an effort by some gun owners to exercise and advertise their rights in states that allow people to openly carry firearms.

 Even in some “open carry” states, businesses are allowed to ban guns in their stores. And some have, creating political confrontations with gun owners. But Starbucks, the largest chain targeted, has refused to take the bait, saying in a statement this month that it follows state and local laws and has its own safety measures in its stores.

“Starbucks is a special target because it’s from the hippie West Coast, and a lot of dedicated consumers who pay $4 for coffee have expectations that Starbucks would ban guns. And here they aren’t,” said John Bruce, a political science professor at the University of Mississippi who is an expert in gun policy.

Welch, a 71-year-old retired property manager who lives in Richmond, Va., doesn’t see any reason why he shouldn’t bear arms while he gets caffeinated.

“I don’t know of anybody who would provide me with defense other than myself, so I routinely as a way of life carry a weapon – and that extends to my coffee shops,” he said.

The fight for retailers heated up in early January when gun enthusiasts in northern California began walking into Starbucks and other businesses to test state laws that allow gun owners to carry weapons openly in public places. As it spread to other states, gun control groups quickly complained about the parade of firearms in local stores.

Some were spontaneous, with just one or two gun owners walking into a store. Others were organized parades of dozens of gun owners walking into restaurants with their firearms proudly at their sides.

In one case, about 100 activists bearing arms had planned to go to a California Pizza Kitchen in Walnut Creek, Calif., but after it became clear they weren’t welcome they went to another restaurant. That chain and Peet’s Coffee & Tea are among the businesses that have banned customers with guns.

Just as shops can deny service to barefoot customers, restaurants and stores in some states can declare their premises gun-free zones.

The advocacy group OpenCarry.org, a leading group encouraging the demonstrations, applauded Starbucks in a statement for “deciding not to discriminate against lawful gun carriers.”

“Starbucks is seen as a responsible corporation and they’re seen as a very progressive corporation, and this policy is very much in keeping with that,” said John Pierce, co-founder of OpenCarry.org. “If you’re going to support individual rights, you have to support them all. I applaud them, and I’ve gone out of my way personally to let every manager of every Starbucks I pass know that.”

The Brady Campaign to Prevent Gun Violence has responded by circulating a petition that soon attracted 26,000 signatures demanding that Starbucks “offer espresso shots, not gunshots” and declare its coffeehouses “gun-free zones.”

Gun control advocates hope the coffeehouse firearms displays end up aggravating more people than they inspire.

“If you want to dress up and go out and make a little political theater by frightening children in the local Starbucks, if that’s what you want to spend your energy on, go right ahead,” said Peter Hamm, a spokesman for the Brady campaign. “But going out and wearing a gun on your belt to show the world you’re allowed to is a little juvenile.”

The coffeehouse debate has been particularly poignant for gun-control advocates in Washington state, where four uniformed police officers were shot and killed while working on their laptops at a suburban coffeehouse. The shooter later died in a gun battle with police.

Ralph Fascitelli of Washington Ceasefire, an advocacy group that seeks to reduce gun violence, said allowing guns in coffeehouses robs residents of “societal sanctuaries.”

“People go to Starbucks for an escape, just so they can get peace,” Fascitelli said. “But people walk in with open-carry guns and it destroys the tranquility.”

Gun control advocates have been on the defensive. Their opponents have trumpeted fears that gun rights would erode under a Democrat-led White House and Congress, but President Barack Obama and his top allies have largely been silent on issues such as reviving an assault weapons ban or strengthening background checks at gun shows.

Gun rights groups are looking to build on a 2008 U.S. Supreme Court ruling that struck down Washington, D.C.’s handgun ban, and cheered legislation that took effect Monday allowing licensed gun owners to bring firearms into national parks. Obama signed that legislation as part of a broader bill.

Legislators in Montana and Tennessee, meanwhile, have passed measures seeking to exempt guns made and kept in-state from national gun control laws. And state lawmakers elsewhere are considering legislation that would give residents more leeway to carry concealed weapons without permits.

Observers say the gun rights movement is using the Starbucks campaign to add momentum and energize its supporters.

“They’re trying to change the culture with this broader notion of gun rights,” said Clyde Wilcox, a Georgetown University government professor who has written a book on the politics of gun control. “I think they are pressing the notion that they’ve got a rout going, so why not just get what they can while they’re ahead?”

 OpenCarry.org

By Chuck Rogér