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Wednesday, May 18, 2022


I was idly watching a cable news panel discussion about the Buffalo grocery store massacre when one of the panel members said something that I had either forgotten or else never knew, namely that the California ban on carrying weapons openly was passed while Reagan was governor in response to the appearance of a group of Black Panthers openly and legally carrying weapons at the state capitol.  It got me to thinking…


aaall said...

I remember the incident. I would point out that that was then and this is now. We live in a different time line. Semi-automatic center fire rifles and militias were barely a thing compared to now and the response today in, say, Michigan, Idaho, or Alabama wouldn't be pretty. Also I believe that was the pre-Carter NRA which was a different organization.

Also Chilie pic:

marcel proust said...

It got me to thinking. Marx my words, that could be dangerous. I kant see anything good coming from that.

s. wallerstein said...


thank you.

Eric said...

"Eric said...

There is a lot of racism behind Americans' peculiar relationship with firearms.

The people who wrote, and the people who ratified, the US constitution lived in constant fear of slave revolts. They demanded recognition in the Constitution of a right to be armed so that they could keep the enslaved in chains. In some parts of America, the enslaved were as much as half of the total population. (Recall that in the 1780s & 90s, there were still large numbers of enslaved Africans even in New York and New Jersey; and there had been uprisings within living memory, both in the colonies and in the Caribbean.) With the end of de jure slavery, there still remained a large population of formerly-enslaved people whom the white population viewed as a potential threat that had to be contained. There was no comparable enslaved population in Canada or Britain, so there could be no comparable argument to justify raising the right to bear arms to a level of constitutional protection, as in the States.

Since the right to bear arms in the UK had been established by statute, it could just as easily be restricted or rescinded by statute, which is much more readily accomplished than repealing a constitutional provision.

The white American psyche in the US also identified very much with bearing arms to fight against the Native population, as the borders of the country were pushed further and further across the continent, eventually swallowing up all of the Natives' territory. Our seniors today grew up on a steady of diet of Western movies and tales that were all about fighting Indians; I doubt that there is anything comparable to that in Canada, let alone in the UK. (You wouldn't believe the level of outrage that was unleashed when the American Library Association announced a few years ago that they were taking Laura Ingalls Wilder's name off of a children's book award. Wilder was the author of the Little House on the Prairie novels that told of her family's settling in the Great Plains during the 19th century. The novels include racist depictions of Native Americans.)

Fun fact: Governor Ronald Reagan signed California's gun control act of 1967, a law that was supported by the National Rifle Association, after whites became alarmed that the Black Panther Party for Self-Defense had been calling for African Americans to take up arms to defend themselves against state-sanctioned white terror."

David Palmeter said...


I think the right to bear arms had more to do with concern about a standing army and the difficulty of protecting a 1,500 mile or so coastal country from either British of Spanish invasion, than with slave uprisings. The seven northern states had all enacted measures providing for the abolition of slavery (albeit over decades in some instances) during the war itself. Concern about a standing army is reflected in Article One of the Constitution which prohibits Congress from appropriating money to support an army for more than two years; no such restriction applies to appropriations for the Navy. There certainly was concern about slave uprisings in the South but I don't believe there was much concern in the North. In any event, whatever concern existed in the 1790s would not have had an impact on the Constitution which dates from 1787.

(Speaking of military appropriations: while the Constitution explicitly provides for an army and a navy, it doesn't provide for an air force or a space force. Accordingly, I think it is incumbent upon the great and glorious originalists on the Supreme Court to find that appropriations for both the air force and the space force are unconstitutional.)

Marc Susselman said...

The shooter in Buffalo used an AR-15 assault rifle to kill his 10 victims. These mass killings are not going to end as long as such weapons, which are not intended for use to hunt deer, are manufactured and marketed to the public. Congress is never going to enact legislation which limits or prohibits their sale. There is only one way the sale of these weapons, and their use in mass killings, can be stopped, and that it through litigation. The companies that manufacture, sell and market these weapons must be sued into extinction. Bankrupt them with multi-million dollar verdicts, and their manufacture and public sale will end.

The principal decision interpreting the 2nd Amendment and its bearing on the issue of gun control is District of Columbia v. v. Heller, 554 U.S. 570 (2008). In that decision, the Court was evaluating the constitutionality of a law passed by the District of Columbia prohibiting the registration of handguns, and thereby prohibiting the citizens of the District from owning or purchasing handguns, except as authorized by the police. The statute also required that residents keep lawfully owned firearms unloaded and disassembled, or bound by a trigger lock.

Towards the end of the majority opinion, Justice Scalia wrote a number of significant sentences that are paramount for understanding the implications of the decision. He wrote, 554 U.S. at 626-27, as follows:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone [a prominent commentator on British law] through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

We also recognize another important limitation on the right to keep and carry arms. Miller [a prior S. Ct. decision] said ... that the sorts of weapons protected were those “in common use at the time.” 307 U.S. at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” ...

It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (Emphasis added; citations omitted.)


Marc /susselman said...

According to Justice Scalia and the majority, although the 2nd Amendment does protect the right of private ownership of firearms, the firearms in question are the kinds of firearms which were owned by members of the militia – the group of private citizens who come to the defense of their state and country – by bringing the kinds of firearms which private citizens commonly owned. Justice Scalia was expressly stating that such weapons do not include the kinds of weapons, like the M-16 rifle, which are used in the military. Most citizens do not own M-16 rifles – which is a semi-automatic weapon. Therefore, the 2nd Amendment, according to the majority opinion in Heller, does not protect the right of citizens to purchase and own M-16 rifles. Similarly, since automatic and semi-automatic rifles are not commonly owned by American citizens, and would not have been owned by members of the militia when the Constitution was enacted, there is no 2nd Amendment right to purchase and own automatic or semi-automatic rifles. Likewise, there is no 2nd Amendment right to purchase and own high capacity bullet magazines.

What does this mean for those of us who advocate for greater gun control? It means that Congress could enact legislation banning the sale of automatic and semi-automatic weapons, and high capacity magazines, without infringing on the Second Amendment rights of American citizens. But just because Congress has the power to pass such legislation obviously does not mean that it will ever do so, given the power of the NRA and other gun ownership right organizations. I submit, therefore, that agitating for the passage of such legislation is a lost cause.

What then is the solution? The solution, I submit, is litigation against the gun manufacturers who make and sell the kinds of weapons that are not commonly owned by American citizens, and therefore are not the kind of weapons that a “well regulated Militia” would typically possess. When Congress will not act, the only alternative is to sue, just as the lawsuits against the cigarette manufacturers resulted in the regulation of the sale and advertising of cigarettes and the resulting reduction in cigarette smoking. Since the sale and ownership of such weapons is not protected by the 2nd Amendment, a company which sells such weapons which are then used to kill multitudes of human beings, can be sued for damages. In such a lawsuit the manufacturer cannot claim that the lawsuit must be dismissed because its right to manufacture and sell them is protected by the 2nd Amendment.

So what is stopping such litigation? The impediment is a law which was passed by Congress in 2005, the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903. (The statute is available online.) Briefly, the statute is intended to protect gun manufacturers and merchants from being sued in federal or state court. The statute essentially requires that any court in which such a lawsuit is filed must dismiss the lawsuit. Its premise is that the Second Amendment protects the right of private ownership of guns – all guns, regardless their nature. But, as explained above, that is not what the 2nd Amendment states, even as explained by the staunchest proponent of 2nd Amendment rights, Justice Scalia. In sum, the statute overstates the scope of the 2nd Amendment protection.


Marc Susselman said...

If a statute purports to protect certain conduct which is not protected by the Constitution, and if that same conduct is inconsistent with another provision in the Constitution which does not protect that conduct, then that aspect of the statute is unconstitutional, because it contravenes another provision in the Constitution. I submit that to the extent that the PLCAA purports to protect the manufacture and commercial sale of automatic and semi-automatic weapons, the statute is unconstitutional. Why? Because it contravenes the Fifth Amendment of the Constitution, which states, in relevant part: “No person shall be ... deprived of life, liberty, or property, without due process of law.” The manufacture, sale and ownership of automatic and semi-automatic weapons – the manufacture, sale and ownership of which, according to the definitive majority opinion in Heller is not protected by the 2nd Amendment - is resulting in the deprivation of the life and liberty of thousands of American citizens every year. A statute which states that those who manufacture and sell such weapons cannot be sued in a court of law, violates the Fifth Amendment and is therefore unconstitutional. It also violates the 1st Amendment provision which protects the right of American citizens to “petition the Government for a redress of grievances,” a right which the Supreme Court has held includes the right to sue in court. The statute also contravenes the 9th Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) and the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”) (Consider: Could Congress pass a statute which prohibited states from prosecuting any individual who steals the property of another, or precluded citizens from suing such an individual in court? How then can it pass a statute which prohibits suing companies which manufacture products whose only purpose is to kill and injure people in mass numbers, when the manufacture of such products is not protected by the only provision in the Constitution which arguably applies, the 2nd Amendment?)

There have been a handful of decisions addressing challenges to the constitutionality of the PLCAA. All have upheld the constitutionality of the statute. However, none of the decisions has been by the Supreme Court. The leading decision in a federal appellate court has been Ileto v. Glock, Inc., 565 F.2d 1126 (9th Cir. 2009), cert. denied, 560 U.S. 924. In that case, the shooting victims of an assault by an individual using “seven firearms which he possessed illegally” sued the manufacturer of the weapons alleging violation of California tort law. The Court rejected a constitutional challenge to the PLCAA, maintaining that the statute was passed pursuant to Congress’ power under the Commerce Clause. There was a very strong dissent, however, by Judge Berzon, in which he expressed the opinion that he thought the plaintiffs’ argument that the statute violated their substantive due process rights under the 5th Amendment had potential merit.


Marc Susselman said...

The Supreme Court has held that there are limits to which the Commerce Clause can be used to justify Congressional action. The leading case on this issue was Schechter Corp v. United States, 295 U.S. 495 (1935), in which the Court held that Congress had exceeded its power under the Commerce Clause when, as part of the National Industrial Recovery Act, it delegated authority to a federal agency to enact regulations to regulate the live poultry industry. Individuals employed in the live poultry industry who were charged with violating regulations enacted as the “Live Poultry Code” challenged the constitutionality of the Code as exceeding Congress’ authority under the Commerce Clause, and the Supreme Court agreed that this aspect of the National Industrial Recovery Act was unconstitutional. Since Schechter, however, numerous federal statutes enacted pursuant to the Commerce Clause have been held to be constitutional. Title VII, for example, which prohibits discrimination in employment and public accommodations based on race, was enacted under the authority of the Commerce Clause. Congress has utilized the Commerce Clause as a basis for enacting a wide scope of enactments, e.g., passing the Fair Labor Standards Act, establishing national minimum wage and maximum working hours; imposing limits on the amount of wheat a farmer may harvest, in order sustain the price of wheat for farmers; and criminalizing loan sharking.

In each of the latter enactments, Congress used the Commerce Clause to protect the people from what Congress determined was conduct in interstate commerce which had an adverse effect on the people. By contrast, by invoking the Commerce Clause to enact the PLCAA, Congress has chosen to protect manufacturers and merchants of products placed in the stream of interstate commerce, products which kill, maim and disable American citizens, and thereby have an adverse effect on the people, against the efforts of the people to protect their right under substantive due process to not be killed, maimed, and disabled. By passing the PLCAA, which protects manufacturers and merchants who make and sell automatic and semi-automatic weapons – weapons, again, which are not protected by the 2nd Amendment – Congress has turned the use of the Commerce Clause on its head – to allow commerce to harm the American people, rather than protecting the American people from such harm. By so doing, I maintain that Congress has violated substantive due process and has contravened the dictates of the 1st, 5th, 9th, and 10th Amendments.


Marc Susselman said...

Therefore, my proposed solution for ridding the country of the sale and ownership of automatic and semi-automatic weapons is this - the next time one or more people are killed by a crazed fanatic using such a weapon, the estate(s) of such individuals should sue the company that manufactured that weapon, and sue the merchant who sold that weapon, in state or federal court. And when the manufacturer and the merchant file a motion to dismiss the lawsuit because the lawsuit violates the Protection of Lawful Commerce in Arms Act, argue in rebuttal that the statute, to the extent that it protects the manufacture and sale of such weapons, violates the 1st, 5th, 9th and 10th Amendments, and is therefore unconstitutional and unenforceable. Bankrupt the manufacturers and sellers of such weapons with multi-million dollar lawsuits, and their manufacture and sale will end.

A successful lawsuit against a company which manufactures an automatic or semi-automatic weapon, and the merchant who sold it, which is used to kill, maim or disable an individual or individuals can be pursued under a combination of two theories of liability under tort law: willful, wanton and reckless misconduct; and public nuisance.

The only purpose that automatic and semi-automatic weapons have is to kill and injure large numbers of people in a short period of time. They cannot even be legitimately justified as weapons needed for self-defense. Unless the owner is intending to go into armed combat – a function better left to our military forces which are trained for that purpose – self-defense against a few assailants can be adequately accomplished with a handgun, rifle and/or shotgun, all weapons protected under the 2nd Amendment, as contrasted with assault rifles, which are not so protected. Given the spate of recent mass killings using such weapons, manufacturers and retailers who continue to make and sell them are on notice that any buyer is a foreseeable potential mass killer. They can accordingly be held liable in the event that one of the assault weapons they have manufactured or sold is used in a mass killing.

Is it a long shot (pun intended)? Perhaps. But what is the alternative. If nothing is done, we all remain potential sitting ducks to the crazed among us with a gripe against society.

Eric said...

David Palmeter,

See Carol Anderson's "The Second: Race And Guns In A Fatally Unequal America." She offers a lot more detail, but consider:

"Madison conveyed that he believed the 'great rights' were 'trial by jury, freedom of the press, and "liberty of conscience."' On the other hand, the right to bear arms and a well-regulated militia, in both his discussion [in the crafting of a bill of rights to appease anti-Federalists like Patrick Henry and George Mason] in the House of Representatives and with Thomas Jefferson, did not make his list. In fact, he wasn't alone. That right was nowhere to be found in more than 'two thirds of the state constitutions.' And when it was there, Massachusetts and North Carolina had limited it to defend the state, while Pennsylvania and Vermont defined it as the right to self-defense and for the state.... [I]f there was going to be a Constitution and a United States of America, the Federalists had to respond to Mason's, Henry's, and the other Southerners' assertions 'that the federal government would, in one way or another, render the militia impotent as a slave control device.' Representative Lamber Cadwalader of New Jersey, therefore, hoped that Madison's amendments would 'calm the turbulence of the opposition in Virginia and some of the other states and certainly bring North Carolina into the Union.' ...

[The Second Amendment] was the result of Madison's determination to salve Patrick Henry's obsession about Virginia's vulnerability to slave revolts, seduce enough anti-Federalists to get the Constitution ratified, and stifle the demonstrated willingness of the South to scuttle the United States if slavery were not protected. ...

As for [the militias being used] for repelling a foreign invasion, that idea had already been disproved.... The discipline, the reliability, and the training were simply not there.... It was obvious, whether North or South, that no militia was going to stop a foreign invasion. The war proved that beyond a reasonable doubt. What the militia could do rather well, however, as George Mason noted, was keep slave owners safe."

Marc Susselman said...

Given the context of the current debate about the right to an abortion and the potential overturning of Roe v. Wade, the irony of what I have written above regarding Congressional legislation which protects the manufacturers of automatic and semi-automatic weapons from being sued in court should not escape us. While the Republicans are drafting language which will make it a federal crime for a woman to have an abortion after the point in her pregnancy when the fetus is believed to be able to feel pain, they have enacted legislation to protect those who manufacture weapons which can be used to kill the fetus after it has grown to adulthood, its experience of pain as its body is mangled by the stream of bullets penetrating its body be damned. Monty Python could not have devised a more bizarre state of affairs.

David Palmeter said...


Thanks for the reference to Anderson's book. I didn't know of it and hope to get a chance to read it soon. However, from what you've quoted, I think she's overstating the case. Certainly Virginia was worried about slave revolts. That's why they sided with the Northern colonies at the Constitutional Convention in the debate over ending the slave trade. Virginia wanted to end it for two reasons: Somewhere around 50% (I've forgotten the exact number) of its population consisted of slaves; they very worried about their ability to quell a revolt and did not want any more blacks imported; in addition, if the then large slave-importing colonies (S. Carolina, Georgia) couldn't import slaves, then they'd have to buy them from Virginia. Virginia would win on both counts.

Unfortunately, some northern colonies (Rhode Island and I think Connecticut) were in no hurry to end the slave trade. While they'd taken steps to abolish slavery, their shipowners had a very profitable business in the slave trade. Hence the 20 year compromise.

Just about everything I've read has emphasized the overriding distrust of a standing army. As you noted, the war showed that militias were not enough, but an army large enough and strong enough to protect the entire coast from what is now Maine (then part of Massachusetts) to Georgia waas abhorrent to them, to say nothing of very expensive. They wanted their militias so that they had control in their own areas, and settled on an army that could not "stand" for more than two years without legislative approval. They weren't at all worried about a navy.

The motivation of the southern colonies for retaining their own militias might well have been driven by fear of slave revolts. But that does not explain the seven northern colonies that had all taken measures to end slavery several years before the Constitutional Convention even met.

Ed Barreras said...

Professor Wolff’s point, I take it, is not that we should channel Reagan’s GOP and ban the open carry of assault weapons. Rather it’s that we should bring back armed Black Panthers — and see if some good comes of it.

Marc Susselman said...


That may have been Prof. Wolff's tongue in cheek point so to speak, but that is not the solution to the already enormous proliferation of guns in our society. That is the NRA's talking point - that the answer to deterring a bad person with a gun is a good person with a gun. This will only result in the death and injury of more people, mostly good by-standers who get shot in the crossfire. Had more African-Americans shoppers at the Buffalo store been armed, more innocent African-Americans would likely have been killed. The armed security guard at the store was not able to stop the crazed gunman. The answer is less guns, not more.

s. wallerstein said...

I'm in favor of gun control and in the case of the racist killer in Buffalo more strict gun control would most probably have prevented his crimes, but...

Chile has very strict gun control, but in recent years deaths by firearms have soared. So far no crazed or racist shooters firing at random into supermarkets or high schools, but lots of gang violence related to drug traffic and violent holdups, not to mention armed Mapuche (native-American) resistance groups in the south of Chile.

That is, even if guns are illegal, those who want them will buy them just as making drugs illegal does not stop people from consuming them. You can buy anything in internet these days.

This may sound boring and tired, but finally, the only way to make society less violent is to deal with the root causes: social inequality, lack of education, mental illness, racism, deep historical grievances (the Mapuches) which need to be confronted and negotiated, etc.

LFC said...

I seem to recall hearing on the news fairly recently that the families of the Sandy Hook victims got a quite substantial settlement from the gun manufacturer(s) that they sued. Apparently both sides preferred that to further litigation, though there may be some families who rejected the settlement. I was not aware of the PLCAA.

tom llewellyn said...

Reagan was always for individual and states rights UNLESS they conflicted with his political goals. Many states lowered the drinking age to 18, so as president he punched through a law making it 21 for all states. WHAT A HYPOCRITE!

s. wallerstein said...

I wasn't in the U.S. during the Reagan years, so I have no idea why Reagan would care about
the drinking age. Could someone explain? Thanks.

aaall said...

"But that does not explain the seven northern colonies that had all taken measures to end slavery several years before the Constitutional Convention even met."

Perhaps it's easier to end something when ones income doesn't depend on it continuing. Slavery makes sense for plantation crops - cotton, tobacco, sugar cane - not so much for a rocky New England farm. NE ship owners had options and prospered.

Eric might have been referencing the slave patrols which were a big thing in the slave states. Participation was mandatory, usually on a rotating basis. Heavily policing Black folks was considered important. Slave revolts had happened in the Caribbean and Haiti weighed heavily on southern minds.

MS, possessing unregistered fully automatic firearms (machine guns), including M - 16s, is a serious felony (federal and most states). Back in the day one could buy a Thompson SMG over the counter or mail order - that ended in the mid - 1930s.

What should have happened is including semi-automatic centerfire rifles in with machine guns, and sawed off rifles and shotguns. 1986 was the last bite at that apple (the 1990s ban was fatally flawed). My reading of Scalia's opinion is that the AR - 15 passes muster but the M - 16 may be banned.

"But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."

Where the profs modest suggestion has legs is with poll watchers. Some of these voter restriction laws allow for a more aggressive roll for poll watchers. Democrats and voter rights groups should be training poll watchers for both minority precincts as well as carrying the fight to lilly-white areas (think "little old ladies" as well as folks who could double for Mike Tyson or Danny Trejo. Those neck bearded dudes in camouflage would likely have second thoughts.

aaall said...

s.w., it seems we can't get past Green Lanternism. Reagan signed a bill passed by both Houses of the Congress that cut federal highway funding to states that allowed folks under 21 to PURCHASE alcoholic beverages. It seems that highway fatalities were rising in states that lowered the purchase age along with the voting age. Bear in mind that this was a period when blood lead levels were peaking for that age group, so a double whammy.

David Palmeter said...


"Perhaps it's easier to end something when ones income doesn't depend on it continuing. Slavery makes sense for plantation crops - cotton, tobacco, sugar cane - not so much for a rocky New England farm. NE ship owners had options and prospered."

No doubt, but that suggests that northern support for the 2nd Amendment is something other than fear of possible slave revolts.

Anonymous said...

with respect to gun control and the black panther party, there’s an interesting essay by James Meek in the London Review of Books about applying one size fits all judgements to political actions:

aaall said...

DP, I'm sure that's the case given English history over the previous couple of centuries. I was just pointing out that the fear of slave revolts shouldn't be discounted. That and the general violence of southern culture and the frontier everywhere else. Whiskey, firearms, and folks from the Boarder-lands, whatever could go wrong?

aaall said...

One further thought: Perhaps why the racial (and insurrection) angle comes up is that they are still things. Whatever the reasons for New England, etc. to support a Second Amendment, they are (and long have been) irrelevant to our politics.

On the other hand, the notions that firearms are necessary because Black folks still need policing by white folks (see "Ahmaud Arbery") as well as those same white folks possibly having to deal with an oppressive government and pesky brown immigrants (see "Ammon Bundy" and "militias") seem to be thriving.