Clayton Cramer Interview

David Codrea, at WAR ON GUNS, interviewed Clayton Cramer (see post for credentials) about his run for Idaho State Senate in District 23.

After the online interview was completed, Codrea threw it open to comments and questions from the readers for about two hours.

I respect Cramer's judgment, and while his position statements involve more than the Second Amendment, it's significant to note that he helped prepare the case for the Respondent (Heller) in the current Heller v. DC case. Thus, his opinions are significant in the national debate.

Here are two exchanges which I found to be of national significance:

(Q) "Based on your work with Academics for the Second Amendment and the insights that must have given you, what are your thoughts on the probable outcome for Heller?"

(A) Just about everyone who worked on the case believes that we are going to win, at least 5-4, perhaps 6-3. The nature of the win, however, is where there is some question.

In spite of Chief Justice Roberts pointing out that the differing standards of review are not part of the Constitution, what we may get is less than we want--but more than we have.

The decision might be what lawyers call a categorical protection--that "shall not be infringed" really means what it says, and as long as the person isn't in a prohibited class, federal gun laws that infringe are unconstitutional. This would be such a dramatic win that I don't expect it. It would demolish too much of the current federal code on gun regulation.

The Court might decide that gun laws are subject to "strict scrutiny." This means that for a law to survive Second Amendment challenge it would have to serve a compelling governmental purpose; be narrowly tailored to serve that purpose; and not be overbroad (meaning that if it is supposed disarm felons, it can't disarm non-felons). This is a likely outcome, as far as I am concerned.

The Court might apply the "heightened scrutiny" or "intermediate scrutiny" standard. In this case, a law has to have some rational relationship to a legitimate governmental purpose. This might mean that the Court strikes down the law, or it might send the case back down for trial to see if there's a plausible case for the handgun ban meeting this standard. This wouldn't be a complete win, but it would at least force governments to justify gun regulations--and that would enable us to put the social science evidence into play. That would at least stop some gun control laws. I consider this a possible, although not likely result.

The lowest standard of review is "rational basis." Here, the burden of proof is essentially on challengers to prove that the gun control law was passed for no good reason at all, but simply reflected ignorance or prejudice. I don't expect this result.

and ...

(Q) "Clayton, in a previous comment, those not loyal to the U.S. do not have a 2A right. How does one remain loyal to the United States of America, while using the 2A to overthrow a tyrannical United States government?"

(A) Loyal to the Constitution, or loyal to the government? There's a reason that our military swears allegiance to the Constitution, not the President, or Congress.

Realistically, if we reach the point where armed revolution makes sense, I rather doubt that anyone on the other side is going to be particularly concerned about fine points of law.

I would also point out that revolutions against the government are ugly, and often more destructive of liberty than the government that was there before. I wrote this article for Shotgun News in 2002: http://www.claytoncramer.com/RightsAndRevolution.PDF. Anyone that speaks too glibly about armed revolution against our government should read it, and think long and hard about the points that I make there

You should, of course, go read the whole thing.