The Heller Gun Decision Week 19 – Why a Renewal of the 1994 Assault Weapon “Ban” is NOT Happening Unless Republicans Vote For It

The United States Supreme Court has recognized that the federal government has national interests when dealing with aliens that are different from those of the individual states. See, e.g., Mathews v. Diaz, 426 U.S. 67, 79-81 (1976). Judicial deference to the federal government in this context is tied to Congress's express Constitutional authority to regulate the conduct of non-citizens within US borders under the commerce clause[which includes interstate movement of people per numerous United States Supreme Court decisions cited in Edwards v. California, 314 U.S. 160 (1941], authority to regulate immigration [Fiallo v. Bell, 430 U.S. 787, 792 (1977]), and foreign affairs generally, Toll v. Moreno, 458 U.S. 1, 10 (1982). See Mathews, 426 U.S. at 81. See also: Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)).

The SAF lawsuit is based on the supposition that state classifications based on alienage is suspect under the `14th amendment and are therefore invalid. The SAF suit is not about the Second Amendment per se. The Second Amendment only applies to “the people”, which is generally viewed as meaning citizens and green card holders though even that is an open issue given Congress’s power under immigration and naturalization they could restrict gun rights of Green Card holders. The Second Amendment – if it applies to the States – would apply via the privileges and immunities clause of the 14th Amendment and that clause only applies to citizens.

Federal law bars persons illegally within the US from having or being transferred [including loans] firearms or ammunition. Under current federal law, green-card holders and immigrant aliens who do not yet have their green card are both okay under federal law. There are other restrictions in terms or temporary residents with exceptions for people engaging in sporting activities legally within the US. Under the various alliterations of consensus immigration reform from “enforcement only” to “comprehensive reform” they all propose to amend 18 USC 922(d) and (g) to expand which categories of “aliens” who are what might be called “parolees” who would be barred from being transferred or having firearms and ammunition.

Basically, under Washington law it is illegal for any person who is not a citizen of the United States to carry or possess any firearm, without first having obtained an alien firearm license from the director of licensing. In order to be eligible for a license, an alien must provide proof that he or she is lawfully present in the United States, which the director of licensing shall verify through the appropriate authorities. The license requirement does not apply to Canadian citizens resident in a province which has an enactment or public policy providing substantially similar privilege to residents of the state of Washington and who are carrying or possessing weapons for the purpose of using them in the hunting of game while such persons are in the act of hunting, or while on a hunting trip, or while such persons are competing in a bona fide trap or skeet shoot or any other organized contest where rifles, pistols, or shotguns are used.

However, the ability to obtain a license does not exist because the FBI has told law enforcement agencies it is against federal law to use federal databases for background checks if they share the results with a non-criminal justice agency such as the Washington Department of Licensing. As a result, law enforcement agencies cannot perform the background checks required by state law for issuing alien firearms licenses and the Washington State Department of Licensing cannot complete the application process or issue alien firearms licenses.

In terms of the elections, there has been a lot of speculation of what would happen in terms of the election results and the aftermath.
At the state level, in California the NRA is probably better off now than it was prior to Tuesday. The reason is that Rod Wright is a State Senator and Manny Perez won the 80th AD and Mariko Yamada – not Christopher Cabaldon – won the 8th AD. As to the 8th AD, Labor opposed Cabaldon based on his firearms stands, among other reasons. There will be a vacancy to fill Mark Ridley-Thomas’s seat because MRT was elected to the LA County Board of Supervisors and Wright will have a large say in that election. Also, because Proposition 11 probably passed, Members who face the voters in 2012 have to worry about what their seats will look like when drawn by a commission. And, there is likely to be a move to reenact some sort of open primary in this state.

In other states, Democratic gains occurred in areas with high rates of gun ownership where Republicans still control the other body. That is true in Michigan and Ohio. While there is a lot of concern over the apparent Republican loss of the New York State Senate, Upstate Democrats in effect control the body. The concern gun owners should have is about Downstate Republicans not Upstate Democrats.

Federally, Obama and his new COS Rahm Emanuel who gets it does not want to cause problems for Labor or “swing voters” which include persons who own guns. Emanuel remembers Clinton and he understands how tenuous Democratic control of the House in fact is. There is a key difference between Clinton and Obama. Clinton never served in a legislative body – nevertheless as a member of the minority in a legislative body. Obama has. The best training to become President is to serve in local executive and elected office in a marginal state – which Illinois was and is. Both Teddy and Franklin Roosevelt served as Governors of New York but also in the New York State Legislature. Teddy Roosevelt served as Republican Floor leader and actually helped Governor Grover Cleveland enact various pieces of legislation.

In sum, you cannot underestimate the value of serving in a legislature in such a diverse state as Illinois. You interact daily with Downstate Rural Democrats from “Egypt” or the St. Louis suburbs, Republicans from the “collar counties” or Central Illinois on the floor and in committee. Also, because of the way the Illinois Constitution works in many cases to “get things done” requires a 3/5ths vote to pass legislation. The human interaction creates a club of members and Obama was a member of that club where members talk to each other and discover their viewpoints.

In addition, what people do not understand is that the type of Democrats who controlled the House during the first two years of the Clinton regime is not there any more. They were wiped out in 1994 and by the movement of House seats from the Northeast and Midwest to the South and West. Those seats that did exist in the Rust Belt were sliced and diced in redistricting in 2001. Indeed, in this cycle – as in 2006 – you had the growth of NRA Democrats. Democratic recruitment efforts were aimed at getting state legislators or local elected sheriffs or veterans to run for these seats.

Some have noted that guns did not play as a wedge issue this cycle. The reason is that Heller narrowed the playing field. In addition, while American Hunters and Shooters countered the NRA very effectively, organized labor made very clear that endorsements would be based on gun issues as in not messing with gun rights and causing internal discord. Obama’s vote for the Vitter Amendment and McCain’s terrible conservation record and vote for the assault weapon extension equaled each other out. As even Karl Rove noted, Obama had a massive outreach strategy to gun owners and hunters and rural voters. In many rural areas and with other voters – as Steve Peace learned from Dr. Cavala – simply “showing up” is enough. Obama also understood the issue of guns on union members – one that I also understand as an associate member of the United Mine Workers Union as well as a member of the AFL-CIO’s Working America partnership and the Theodore Roosevelt Conservation Partnership.

In fact, in Ohio what carried the day for Obama and Democrats in general was not simply running up the score in urban areas but going everywhere. Obama outperformed John Kerry in 76 of Ohio’s 88 counties when Tuesday's results are compared with 2004 election figures. And that translated to a 200,008 votes [and counting] Obama win, an easy win for the Democrats to replace disgraced [and NRA backed] former Attorney General Marc Dann, and Democrats winning a majority in the Ohio House of Representatives.

Obama and Democrats in general went to Ohio’s Appalachia and they put resources in the Ohio’s southwest, focusing on Hamilton County, which includes Cincinnati, and on Butler County. Obama was the first Democrat to carry Hamilton County since LBJ. In the process, State Representative Steve Driehaus knocked off US Representative Steve Chabot in US House District 1.

In addition, in the South as I have noted before African Americans [who have high rates of gun ownership] were paying a lot of attention and this caused a substantial amount of problems for the NRA and Republicans as an attack on Obama would result in the type of turnout models that spelled disaster for Republicans. In Illinois, NRA endorsed candidates – the prime example being Congressman Peter Roskam [His campaign website opens with an Obama quote: "I'm a member of the mutual admiration society with Sen. Roskam. He is always terrific."] - touted their relationship with Obama dating back to the Illinois State Senate. Save in the Oregon Senate race, Obama did not in any way or manner lift a finger to help Democrats who cried foul. I mentioned that when I wrote about Republican validaters of Obama – as did Dr. Cavala.

In terms of Democrats who were NRA endorsed, they had every reason be on the Obama Team – particularly in the South. The changed dynamic was most apparent in North Carolina where the NRA endorsed Democratic Lieutenant Governor Beverly Perdue [who was elected] to replace Governor Mike “Governor Bubba” Easley over Charlotte Republican Mayor Pat McCrory who was perceived as a “gun grabber”. Why that was the case I leave to speculation. Perdue and new US Senator were for Obama from Day 1 for reasons noted below.

The difficulties that the NRA faced were magnified in North Carolina because of straight ticket voting. North Carolina is one of the few states left in the United States where straight ticket voting by checking a box results in a party line vote for every partisan office on the ballot. However, straight ticket voting in North Carolina does NOT count for President. A voter must make their selection for President separately. Many North Carolina voters did not realize this.

Being able to vote a straight-party ticket for all non-presidential and non-judicial races has been part of North Carolina elections since the 1960s because Democrats at the Courthouse level did not want to deal with National Democratic Party fallout. In the past, this resulted in under-voting by approximately 100,000 votes in the Presidential race – primarily among African-Americans but also rural Whites. The feature caught the attention of Team Obama this cycle and they used it to their advantage. But it also helped Democrats in general in North Carolina.

As we all know, the Obama ground operation was focused on getting low propensity voters and getting new people registered but also getting “persuadable” White voters to take a look at Obama. Persuadable voters by definition are open to a conversation which means respecting their gun rights. However, the size of the North Carolina electorate increased 90% in the last 18 years. In 1990 there were 3.3 million registered voters; today there are 6.2 million. Obama used NASCAR Legend Junior Johnson from Yadkin County talking up Obama [because of the Vitter Amendment] in robo calls and bashing Bush in general and McCain on the tobacco buyout in particular.

As a result of Junior Johnson and other valdaters, in North Carolina, Obama did significantly better with North Carolina White voters than John Kerry, Al Gore or Bill Clinton, in many other Southern states. Obama won 35% of North Carolina White voters, up from Kerry's 27%, according to exit polls cited by CNN. Obama also showed gains among White voters in South Carolina and Virginia – which is why he won Virginia.

The up tick in White support helped Obama win Mecklenburg County [Charlotte] with 62% of the vote – a margin that apparently stunned even Democratic Party leaders. The inroads among White voters also helped Obama outperform Kerry across the state, even in rural areas in the east and in conservative counties ringing Charlotte – thanks to Junior Johnson. Obama's improvement with White voters was due to a number of factors, such as politically moderate transplants moving to North Carolina. Obama's advertising blitz was also credited with successfully wooing Whites.

The improvement with White voters was important but to get into the ball park to get there, Obama had to register voters and get occasional voters to the polls. When you are dealing with new voters or low propensity voters the idea is to keep it simple. Here, the old Berman-Waxman slate card works perfectly. Obama’s campaign made it clear vote for Barack and then check the box for the straight ticket. Among early voters Obama had a significant edge which meant that all he had to do was play defense. [In a number of the polls that polled North Carolina, voters told pollsters that Obama lead by 15 to 18 points among those who said that they have already voted. McCain lead by an offsetting 23-25 point among those who have not yet voted but promised they would. Whether those who early voted had in fact voted as they thought is unclear.]

As of last night per the North Carolina Board of Elections approximately 49.7% of North Carolinians voted a straight ticket ballot. The Democrats had a statewide 399,169 “straight ticket” vote margin. Professor Curtis Gans who is an expert on this estimated that Democratic turnout increased in all but seven states, led by Indiana (+ 8.32% ), North Carolina (+ 8.3%), Hawaii (+6.4%), Delaware (+6.1%) – which is why Democrats probably won complete control of the Delaware Legislature, Georgia (+6.1%), North Dakota (+6.0%), Nevada (+5.9%), Montana (+5.4%), New Mexico (+ .1%), and Virginia (+5.0%). Professor Gans further noted that The greatest increase in overall turnout was in North Carolina, where turnout increased by 9.4 % to a record high. Georgia also had a record high turnout, increasing by 6.7 %, as did South Carolina with a 6 % increase. That straight ticket did not help Obama per se but it did help every other Democrat on the ballot. What that meant what was good for Bev Perdue [and the NRA] was bad for Liddy Dole [and the NRA].

It also meant that to win statewide, in pure mathematical terms, the Republicans had to get 81.6% of the split ticket votes. Perdue had to simply hold enough of her own to avoid losing by less than 399,000 votes with 50.3% of the remaining voters – she did by winning by 120,000 votes. In the case of Liddy Dole, it meant that she had to pick up 399,000 votes from 50.3% which she did not and she lost. It was that unique ballot situation that played to Obama’s advantage and it also killed the NRA and North Carolina Republicans. The “under-vote” in the Presidential race – and some under-voting may be by deliberate choice - was 48,299.

In terms of the NRA Political Victory Fund's toughest efforts against Obama, they were apparently concentrated in Colorado, Pennsylvania, and New Mexico – all states Obama and other NRA opposed candidates carried. I have written about Pennsylvania repeatedly and I could have told anyone that the McCain-NRA strategy there was a non-starter – notwithstanding Governor Ed Rendell’s public musings. As my friend Professor Terry Madonna noted “Ed was being Ed”. Obama carried the Keystone State by over 600,000 votes – the largest margin since Nixon in 1972.

In terms of Colorado and New Mexico, in Colorado the effects of Columbine and suburbanization are clear. In New Mexico, Governor Bill Richardson who the NRA loves was a validater – just as Governor Ted Strickland was in Ohio – another NRA favorite. In that vein, I would say in terms of whom he has due bills owed to President elect Obama owes “Big Time” Governor Strickland, Governor Richardson, and Senator Bob Casey. Casey, Strickland, and Richardson are all NRA favorites.

Down the ballot, the NRA backed all six of the Republican Senate candidates who lost to Democratic challengers – AHSA supported the Cousins Udall [Colorado and New Mexico], Jeanne Shaheen in New Hampshire, and Kay Hagan in North Carolina. In several high-profile House contests, NRA-backed candidates like Ed Tinsley, Bill Sali, Steve Chabot, and Phil English lost. But save for Chabot, all of those Democrats who replaced them are also very pro-gun – of necessity. Of the Democratic pickup who fared well on Tuesday -- like Bobby Bright (AL-02), Harry Teague (NM-02), John Boccieri (OH-16) and Debbie Halvorson (IL-11) had high ratings from the NRA. Halvorson who is very close to Barack from the Illinois state legislature was NRA endorsed.

In fact, 3 Democrats in competitive races who received endorsements from the NRA - Don Cazayoux (LA-06), Tim Mahoney (FL-16), and Nick Lampson (TX-22) -- lost their reelection bids. And, the NRA had to go to the wall to save Paul Kanjorski and Jack Murtha in Pennsylvania with their having to do mixed messages there. As to the NRA organizationally, as I have noted in the past, when you have as your Brain Trust such leading lights as Randy Scheunemann who may or may not have been part of the Palin Diva faction and may or may not have been “fired” you are in big trouble. As was reported in today’s New York Times, it is now clear that Scheunman’s client – maybe on Scheuneman’s advice – urged Georgia to provoke Russia into a war.

Incidentally, the NRA and others have pointed out – correctly in my view – that what sunk Tom Bradley in 1982 was not race – it was guns and region and opposition of African Americans in Northern California. I remember 1982 and the effect Proposition 15 had. Proposition 15 [much of its sans the “freeze” has been enacted under Pete Wilson and Gray Davis] required all handguns to be registered as a condition of ownership which has always polled high until you get into details, it was murky as to loans, and acted as a freeze as to new acquisitions which is a defacto ban. The ban portion never gets about 15%.

Proposition 15 functioned in effect as the federal assault weapon ban – but in terms of transfers. Proposition 15 not only failed, but it attracted to the polls a different electorate than was then typical for California. The electorate was changed because of voter registration drives by the No side – including in the African American community where new State Senator Rod Wright first got politically active.

In addition, in 1980, the rules on absentee ballot voting were relaxed so that vote by mail [California’s form of early voting] became much more prevalent. The California Republican Party seized on the change, mailing out hundreds of thousands of ballots to Republican voters with a follow-up or “chase program”. That election was the precursor of today’s early voting, which the Democrats used to garner huge numbers of pre-Election Day votes for Obama. In California that year, the exit polls weren’t counting these voters – Bradley won the votes cast at the precinct but Prop. 15 was crushed.

As was noted the other day at www.politico.com, Nelson Rising who ran Bradley’s campaign had urged him emphatically to oppose 15 and do whatever he could – and it was put on by supporters of Ronald Reagan and Bradley – to keep it off the ballot. Bradley late to the party endorsed 15. Proposition 15 was advertised as registration – not a ban. Once it got out that it was a ban and Bradley was for it, it was over for him and 15.

I am told that Steve Merksamer who is now a prominent Sacramento attorney stated “Without Tom Bradley endorsing Prop. 15,” said Steve Merksamer, a former Deukmejian chief of staff, “we would have lost.” It so happened that the No on 15 Campaign brought out a heavily blue collar latent union vote that voted against Bradley and 15 but voted Democratic in a large number in down ballot campaigns – which helped elect Steve Peace to the State Assembly. Peace opposed 15 at my insistence despite grumbling from others and he admitted that it saved him.

Another factor that killed Bradley was African American views on gun rights which were different from Bradley’s and the fact that he was from Los Angeles. Bradley was Mayor of LA. I can tell you that regionalism “North of the Water Line” is real. Northern California antipathies towards Los Angeles politicians know no color. African Americans in the Bay Area did not turn out for him. And, because of his support of 15 – it got crushed in the African American areas in the Bay Area and throughout California did not vote for him – not that they voted for Deukmejian but he lost a chunk of his bas,

In sum, what sunk Bradley were guns, mail ballots and a weak African American turnout for him because he was not in sync on guns. That did not hurt Obama because he got it – he knows his base. Last Tuesday, African-Americans who are maybe 6% of the electorate in California were 10% of the actual voters. Unfortunately for the opponents of Proposition 8 – unlike the opponents of Proposition 4 who did outreach and won- they did not understand the cultural views of the type of new and low propensity voters Obama would bring to the polls. As Senator Ray Haynes used to say in one of his “Quotes of the Day, Understand your Base. As such, according to those who were there, the real lessons of the Bradley campaign involve the dangers posed by divisive issues and by a candidate’s own allies and supposed allies. Bradley’s campaign suffered three self-inflicted wounds it could not overcome.

Having explained the “Bradley effect” the NRA’s efforts to demonize Obama failed because Obama had a gun strategy predicated on validaters ranging from American Hunters and Shooters to pro gun Democrats who as noted above had their own reasons for being for Obama. Had Hilary been the Democratic nominee, the No vote on the Vitter Amendment would have been used dramatically to slice and dice her – particularly with African Americans because this was all about Katrina. I should add that anyone who says that Obama does not understand lunch bucket voters does not know his background. He was hired as director of the Developing Communities Project (DCP), a church-based community organization originally comprising eight Catholic parishes in Greater Roseland on Chicago's far South Side, and worked there for three years from June 1985 to May 1988.

That leads me to what might happen on firearms legislation in Congress – even though most of the action is always at the state level. For starters, there is speculation that a revised “assault weapon” ban being re-enacted – which is why gun and ammunition sales have skyrocketed. I find this rather amusing because the effect of all this in this state is that the number of registered handgun has increased – which is an argument for improving the accuracy of the system. All these people who do a “back end” transfer without making sure the gun is properly re-registered will have the guns still in their name.

People can forget about a new “assault weapon” ban - that one is not getting any traction – Labor is opposed and Rahm Emanuel is not putting his boss or a Democratic majority at risk. Look at the makeup of the new Congress. Some of this buying may be Obama paranoia but a lot of this is also upscale people going downscale.

Given all the paranoia about “assault weapons”, for the record, all the 1994 law did was to prohibit or restrict the making or importation into the US of various firearms and high capacity magazines. It did not affect any “pre ban” guns. The 1994 law as to imports codified a prior import restriction effectuated by President Bush 41. That law expired in 2004 though John McCain voted for an extension as part of final bill that failed and the import ban remains in effect which means that restricted weapons can only be made under a licensing agreement within the US.

The 1994 crime bill which included “the ban” passed because Republicans voted for it. Many of those Republicans are gone and because of the movement of seats because of the 2000 census and resulting redistricting, many of the Democratic seats where the members voted for it are gone as well.

In fact, the shifts in redistricting in the wake of the 2002 census have created situations where no 1994 revival could even pass the House. A number of the seats of Democrats who voted for the 1994 law have disappeared and those Republicans who voted for the 1994 law are gone as well replaced by GOP hardliners. The Karl Rove plan which I wrote about actually weakened Republicans in the Northeast and Midwest by creating large numbers of marginal seats in Michigan, Ohio, and Pennsylvania.

Because of demography and philosophical trends, Rove in effect created a number of what I would call AHSAcrats or Unioncrats in 2006. These are Democrats who are union oriented, tax wary, trade wary, mildly pro gun, “tough on defense”, difficult to define on abortion [whose views on this may be shaped by religious teachings which are not on all the same page vis-à-vis this issue] Democrats in a number of states. In addition, you have large numbers of African American congresspersons from the rural south who want to move up. The best way to connect with White voters you need – witness Rod Wright – is to be for gun rights. Pelosi’s majority depends on all these Congresspersons.

In the Senate, the only reason the 1994 legislation avoided a filibuster is that Republicans put up 6 votes for the bill to cut off debate. Those Republicans are gone – the Senate within the GOP is devoid of moderates. The easiest way to note this is to make a comparison on votes is between the Senate as likely to exist in 2009 and the Senate in 2004. In 2004, an extension passed 52 to 47.

It was generally assumed that Democrats would pick up seats in 2008 and they did but they did not pickup seats in the numbers people thought that they would. The Democratic pickups maybe Alaska [Mark Begich will vote with NRA], as well as pickups in Colorado [Mark Udall is an AHSAcrat], New Hampshire [Jeanne Shaheen is an AHSAcrat], New Mexico [Tom Udall is an AHSAcrat], North Carolina [Kay Hagen is very pro gun AHSAcrat], Oregon, and Virginia [Mark Warner is more pro gun than John Warner]. Norm Coleman has been I believe reelected and Saxby Chambliss will be reelected. Democrats did not get to 60 votes to shut off debate on anything unless the Republicans want that to happen. [Of course, in the case of taxes unless something is done then all current tax reductions expire on January 1, 2011.] I should add that every single democrat elected in 2008 will be up in 2014 and if Obama is reelected the second mid term of a President is not good.

As to guns, in the 2004 elections, the following 5 Yes extension votes were replaced by 5 or 6 No votes on an extension (Vitter for Breaux, Thune for Daschle, Burr for Edwards, Sanders for Jeffords, Martinez for Graham, and maybe Warner for Warner). The following No extension votes may have been replaced by Yes votes (Mark Udall of CO for Allard, Salazar (possibly – though doubtful) for Campbell, Tom Udall of New Mexico for Domenici, McCaskill (possibly – she is an AHSAcrat) for Talent.

Gordon Smith who lost on Tuesday voted for the 2004 extension [yet he was NRA endorsed] as did Judd Gregg. Gregg is up in 2010 and he should be worried about his base so he becomes a NO. Kay Hagan has indicated that she would not vote for an extension or renewal. I would not be surprised if Olympia Snowe and Susan Collins go from Yes to No. As can be seen, the net effect of this is that it is not at all clear that there are even 50 votes for a revival of an extension.

Besides the closeness of the vote, the first thing people have to remember is that Majority Leader Harry Reid is up in 2010 for reelection in Nevada, as is Byron Dorgan in North Dakota, Ron Wyden in Oregon and Russ Feingold in Wisconsin. The second thing people have to remember is that in 2004 Republicans gained US Senate Seats and those seats are up in 2010 in red states - with the possible exception of Mel Martinez in Florida – none of those Reeps have to worry about a general but they have to worry about their base. As such, nothing is happening.

On the other hand, some sort of “gun show” regulation bill is likely to happen thanks to John McCain based on a better version of S. 1805 IF it is packaged in with some worthy provisions in the Space bill that was introduced in the House on BATF reform with NTRA support.

We do know that Nancy “Member Protection” Pelosi will not allow a vote on even this without a John Dingell negotiated deal. The McCain “gun show amendment” passed 53-46 in 2004 as part of the same bill that actually tanked with the extension. Reid voted for that gun show amendment and if you look at this issue, a McCain style gun show amendment would have 60 votes.

The gun show “issue” really involves the question of regulation of private party transactions between residents of the same state at a specific venue. Under current federal law, if a resident of one state desires to transfer ownership of a gun to a resident of another state, then the transaction has to be brokered through a federal firearms licensee who then has to follow various procedures including Brady NICS checks.

In California, all we did – with specified exceptions - is to use the federal interstate model and apply it to in-state transactions. While it is more complicated than that that was the basic model and it was contained in the Klehs Law – a law enacted in 1988 with NRA support. All the various gun show proposals do is to require the same interstate transaction rules apply to intrastate transactions if done at a gun show.

In terms of the impact of regulating “gun show transactions”, it is important to remember two things: (i) most large states [and several small ones] regulate extensively private party transactions in handguns; and (ii) several states regulate transactions at “gun shows”. As such, what in many cases what this is all about are rifle and shotgun transactions between residents of the same state at a “gun show” without Federal Firearms licensee involvement. In 2000, Colorado and Oregon passed statewide initiatives to regulate “gun show” transactions.

The NRA’s opposition to “gun show regulation” is the question of procedures, not the issue of checks per se – particularly post Heller. Wayne LaPierre is on record as favoring background checks at gun shows if they are NIC’s checks. Because of recent decisions on the scope of Congress’s power under the “commerce clause” of the constitution, in order to regulate these transactions the definition of what is a “gun show” of necessity has to be limited.

In the case of Harry Reid, Clark County which is Nevada has long required handgun registration. All the 2007 Lee Law did was to modernize the system under the guise of preemption changes. Background checks are required in Clark County as part of the registration process so in that sense a “gun show” regulation bill would have minimal effect in Nevada because “shows” of necessity take place inside either government convention facilities or gaming facilities.

Because of liability and related issues, the reality is that in Nevada transactions at gun shows are done through Federal Firearms Licensees. However, Nevada has a very good [because it is comprehensive] instant check system so this is a non issue. In essence, Nevada – because it started post Brady built into its system a “rap back” capability. Reid co-sponsored the McCain Amendment but voted against the extension. End of story.

Finally, as to concealed handgun carry licensing proposal in Illinois, the NRA has always said “the voters are with us”. As I have noted Illinois does not have a carry licensing system as such. Rather, it relies on carry exemptions based on safe transport and activity based exemptions with occupational licensing exemptions which seems to suit folks there fine in the main. I am not opposed to licensing but to get these laws enacted in many cases makes the license a hassle. It is not a priority for most gun owners. They just want to be able to engage in legitimate activities and to safely transport their guns without a lot of hassle. I should add that the flawed DC Gun revisions that the NRA pushed used the exemption model for long guns carrying.

In Illinois, to show movement to activists the NRA pushed county boards of supervisors to put advisory referendums on county ballots over whether the Illinois Legislature should enact a concealed carry licensing statute. There were 14 such votes, 10 passed and 4 failed.

The referendums failed in suburban areas with disputes over wording in terms of explaining what would be required to obtain a permit in terms of training, background checks, etc. There is also an issue whether in Illinois as to the vote threshold to pass a concealed-carry bill. Illinois has a strong Constitutional Home Rule [Art. VII, § 6] provision enacted in 1970 as part of a constitutional revision which was put in place at the insistence of the late Mayor Daley and localities in General.

First, Section 6 (a) provides that a County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt. Secondly, home rule units are granted the right to exercise such powers concurrently with the state. Article VII, § 6(i), of the 1970 Illinois Constitution provides that home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive."

Section 6(a) and (i) has been repeatedly held by the Illinois Appellate Courts to allow the regulation of firearms, including the authority to impose greater restrictions on particular rights than those imposed by the state. The only limits on a home rule unit's autonomy are those imposed by the Illinois Constitution or by the Illinois General Assembly exercising its authority to preempt home rule in specific instances. However, Section 6(g) provides that the Illinois General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (l) [which deals with taxing authority]. The interaction of 6(a) and 6(g) has never been litigated in depth. From what I read I believe that a state concealed carry law could well be subject to the 3/5ths vote threshold.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.