December 20, 2011
GUN LAW NIGHTMARE: Tea Party Leader’s Gun Arrest Highlights Tyranny of Law. “Tea Party Patriots co-founder Mark Meckler was arrested on a firearms violation for declaring a locked, cased, unloaded gun at LaGuardia. Don’t you feel safer?” It’s clear that he did nothing actually wrong, but gun laws are full of traps for the unwary and — although violation is mere malum prohibitum — are often enforced more stringently than laws banning behavior that is actually wrong. Back when the Second Amendment right to arms wasn’t recognized, you could perhaps justify an in terrorem approach where traps for the unwary were seen by law enforcement as features, not bugs. (Though even there I believe there were due process issues that weren’t properly aired.) But once you recognize a right to arms, the whole chilling-effect approach is weak.
This is a topic I discuss in my Second Amendment Penumbras piece, forthcoming in the Southern California Law Review. I also note that a patchwork of confusing (often even to law enforcement) and overlapping laws regulating the exercise of a fundamental right is a burden on the constitutionally recognized right to interstate travel. At the very least, they should warn you when you’re entering a repressive regime.
And here’s a guy with some related thoughts on gun control and mens rea.