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Under the Income-tax Act, 1961 (IT Act) educational and medical institutes have the option of availing the benefit of two exemption regimes, namely under Section 10(23C) and Section 11 of the IT Act. Prior to 1 July 2020, these institutes had the option of availing the benefit of both the exemption regimes simultaneously which was exercised by numerous such institutes. Thus, the income of such institutes could be exempt if they satisfied the associated conditions laid down in either of the regimes.

The changing landscape of exemption regimes Finance Act, 2014 to Finance Act, 2023

The Legislature sought to change the aforesaid position by inserting a proviso to Section 11(7) of the IT Act vide the Finance Act, 2020. In order to understand the background for the same it is important to refer to the legislative history of Section 11(7).

Section 11(7) of the IT Act, which was inserted into the IT Act vide the Finance Act, 2014, provides that a charitable institution availing an exemption under Section 11 could not simultaneously claim exemption under Section 10 of the IT Act with the exception of clauses (1) and (23C) thereto. The said provision was inserted in the IT Act to address the problem of educational and medical institutes being registered to claim the benefit of Section 11 but claiming exemption under the general provisions of Section 10 without having to comply with the conditions relating to application of income laid down in Section 11.

The Legislature also noted that a similar situation also existed with respect to institutes approved under Section 10(23C), and in order to remedy the same, inserted the erstwhile eighteenth proviso to Section 10(23C). Therefore, educational and medical institutes registered under Section 10(23C) which did not apply their income in accordance with the said provision could not fall back on other clauses of Section 10 to claim income-tax exemption.

Subsequently, in 2020 the Legislature took note of the fact that in certain cases educational and medical institutes were registered in both Section 12AA and Section 10(23C) and were claiming exemption interchangeably in either of the provisions. Noting that since the provisions relating to such charitable institutes constitute a complete code, it was felt that once an institute had voluntarily opted for one of the aforesaid exemption regimes, the option of switching between the two regimes at convenience should not be available.

Consequently, Section 11(7) of the IT Act was amended vide the Finance Act, 2020 by way of insertion of two provisos. The first of the said provisos provides that the registration of a charitable entity claiming exemption under Section 11 would become inoperative from the date on which it is approved under Section 10(23C) or in case of institutes which were already availing the benefit of both the exemption regimes, on the date on which the first proviso come into effect i.e., 1 June 2020. Thus, educational and medical institutes claiming exemption under Section 11 and Section 10(23C) were shifted to exemption regime under Section 10(23C) alone by virtue of this proviso.

However, by way of the second proviso, a one-time opportunity to switch back to the exemption regime under Section 11 was also provided to these institutes. The second proviso lays down that charitable entity whose registration becomes inoperative because of the first proviso may apply for re-registration, in which case the approval received by such charitable entity under Section 10(23C) would stand cancelled and the charitable entity would not be entitled to exemption under Section 10(23C).

In addition to the above changes, the Finance Act, 2020 also introduced a new set of provisions for grant of approval under Section 10(23C) and registration for claiming exemption under Section 11. As per the said amendments, all charitable entities had to make an application for fresh approval or registration in order to continue to enjoy the benefit of either Section 10(23C) or Section 11 respectively.

Therefore, with effect from 1 June 2020, a charitable entity which was availing the benefit of the exemption regimes under Sections 10(23C) and 11 of the IT Act, was forced to choose between one of the said regimes. Firstly, due to the operation of the first proviso to Section 11(7), the charitable entitys registration for availing exemption under Section 11 would become inoperative and it would have had the option to either apply for approval under clause (i) of the first proviso to Section 10(23C) or for registration under clause (iv) of Section 12A(1)(ac). Thereafter, the one of following sequence of events could take place:

Further amendments were made by the Finance Act, 2022 to align both the aforesaid exemption regimes and insert certain additional compliances and conditions. One of these amendments was in relation to the cancellation of registration/approval under the two exemption regimes which provided that the relevant authority could cancel the registration/approval of a charitable entity in case of a specified violation, i.e., the happening of certain specified events.

Now vide the Finance Act, 2023, even more amendments have been made to the exemption regimes under Sections 10(23C) and 11 of the IT Act. For the purposes of the present discussion, three amendments must be considered.

The first pertains to the expansion of the meaning of specified violation as used in Sections 10(23C) and 12AB, the occurrence of which would result in the cancellation of approval under Section 10(23C) or registration for availing exemption under Section 11. The Memorandum states that one of the issues which was being faced under the new system of registration/approval was that charitable institutes were being granted provisional registration/approval or re-registration/re-approval automatically without any scrutiny because of which even defective applications containing incorrect or incomplete information were being passed. Thus, in order to curb such practice, an amendment has been made to expand the scope of the expression specified violation to include the filing of an incomplete application or an application containing false or incorrect information.

The second amendment relates to Section 115TTD of the IT Act which deals with the taxation of accreted income of charitable entities in case they are inter-alia converted to a form which is ineligible for grant of registration for availing exemption under Section 11 or approval under Section 10(23C). As per the amendment to Section 115TD, a charitable entity is considered to ineligible for registration/approval if it fails to make an application within the time specified either under the first proviso to Section 10(23C) or under Section 12(1)(ac). The said amendment has been made to address the situation whereby a charitable entity would seek to opt out of the exemption regimes without having to pay tax on accreted income under Section 115TD.

The third amendment is with respect to the registration/approval process under the two exemption regimes. The residual clause for application under both Section 12A(1)(ac) and Section 10(23C) has been amended so that registration/approval would only be given to those trusts who have already commenced activities if they have not previously claimed exemption under either Section 11 or Section 10(23C).

Therefore, the provisions relating to the exemption regimes under Sections 10(23C) and 11 of the IT Act have undergone a multitude of wide-ranging changes having an impact on nearly every aspect associated with the operation of educational and medical institutes. As will be discussed in this write-up, this has resulted in a situation where a mere procedural lapse can have far reaching consequences.

Procedural lapse or a fatal mistake?

A problem which has arisen on account of the complex nature of these provisions is with respect to educational and medical institutes which were availing the benefit of both the exemption regimes. As has been discussed above, due to the first proviso to Section 11(7), the registration for availing exemption under Section 11 became inoperative with effect from 1 June 2020. However, since no order was required to be passed by any statutory authority to give effect to the said provision, numerous such institutes continued to operate under the assumption that they were still covered under the purview of Section 11 and therefore, applied under clause (i) to section 12A(1)(ac) for automatic re-registration.

Thus, this has resulted in certain procedural irregularities. Firstly, such educational and medical institutes have applied for re-registration for exemption under Section 11 under the incorrect provision of law. Secondly, they have also failed to make the application for re-approval under Section 10(23C) within the time stipulated under the said section.

The consequence of the first of the two irregularities is that following the amendment to expand the definition of the expression specified violation, the application made by the charitable entity may be considered to be one containing false or incorrect information. Thus, it may result in the cancellation of registration for availing exemption under Section 11. In addition to the above, the consequence of the second irregularity would be that the charitable entity would be considered to have been converted to a form which is ineligible to seek approval under Section 10(23C) of the IT Act.

The ultimate consequence, therefore, would be that the charitable entity would then become liable to pay tax on its accreted income under Section 115TD of the IT Act. Moreover, such a charitable entity would no longer be eligible to apply for exemption under either Section 10(23C) or Section 11 since neither does the first proviso to Section 10(23C) nor does Section 12A(1)(ac) contain any clause which would allow application by a charitable entity which has commenced operations and also previously claimed exemption under Section 10(23C).

Hence, any charitable entity which has even inadvertently committed the afore-mentioned procedural lapses would potentially face a heavy tax burden. Not only would such a charitable entity have to pay tax on its accreted income, but it would also be barred from making a fresh application in the future for claiming exemption under either Section 10(23C) or Section 11 of the IT Act.

While it is a settled position of law that the benefit of a substantive provision of law cannot be denied due to a mere procedural lapse, considering the express intention of the Legislature behind the amendments introduced vide the Finance Act, 2023 as well as the host of other amendments to both the exemption regimes, it would be interesting to see how the income-tax department deals with the situation discussed above.

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Navigating the exemption labyrinth - Pitfalls in the way of charitable ... - Lexology

Goldstones latest book is Not White Enough: The Long, Shameful Road to Japanese American Internment. Learn more at http://www.lawrencegoldstone.com.

That Democrats have long suffered from poor messaging is no secret. Every few weeks, it seems, brings a new lament about the failure of the party to persuade voters, even their own, that their programs and their vision is superior to the false promises peddled by Republicans. As Michael Tomasky wrote, Theres always a lot of grumbling about Democratic messaging, and for good reason: Its generally pretty baddefensive and unimaginative.

One common criticism is that the Democrats message is excessively policy-oriented, too dense and too boring for even most party loyalists to care about. Former Republican strategist Mike Murphy noted, Theyre forgetting a lot of voters dont follow this detailed stuff because theyre busy with their life. Pick a simple thing people understand thats popular, thats smaller.

That some Democratic strategists demur could be part of the problem. In 2022, Vanity Fair featured an article by Dan Pfeiffer, the former Obama communications director, provocatively titled, Why Do Democrats Suck at Messaging? The body of the piece belied the title, however. In it, Pfeiffers main contention was that Democrats were no worse than Republicans, who seem to be winning the messaging war in spite of themselves. As he pointed out, Kevin McCarthy looks like he just woke up from a nap and cant gure out where he is or what he is doing. Mitch McConnell, one of the worst communicators in modern political history, sounds like he is reading The Almanac of American Politics with a mouthful of marbles. He did grudgingly admit, The right has effectively created a narrative about Democrats and has stuck to it. Make America Great Again is one of the most successful political branding efforts in history.

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Indeed it was and that is the point. Democrats messaging fails, because, unlike Republicans, they seem to lack an appreciation for the power of effective use of language.

That may be changing.

Recently, there have been subtle shifts in the basic approach to two key issues and Democrats have since been making progress on both. In abortion, pro-choice has been supplanted by reproductive rights, and in the Second Amendment debate, gun control has been replaced by gun safety. Each reflects increased cognizance of how the terms are absorbed by voters who are not ideologically frozen to one side of the debate or the other.

The term pro-choice was, as Murphy noted, purely defensive, a reaction to pro-life, an abbreviation of Right to Life, a phrase that had gestated among anti-abortion groups in the 1960s.

In 1972, Jimmye Kimmey, an Episcopal priest and executive director of the Association for the Study of Abortion, wrote a memo to the associations members in which she expressed the need to find a phrase to counter the Right to Life slogan. Fully aware of the critical need for a potent catchphrase, her suggestions were Freedom of Conscience and Right to Choose. She preferred the second because, Right to Life is short, catchy, and is composed of monosyllabic words (an important consideration in English). We need something comparableRight to Choose would seem to do the job.

Conscience, she noted is an internal matter while choice has to do with actionand it is action we are concerned with. Finally, she brought the issue to its core. What we are concerned with is, to repeat, the womans right to choosenot with her right (or anyone elses right) to make a judgment about whether that choice is morally licit.

After Kimmeys suggestion began to percolate among pro-abortion groups, Right to Life, was shortened to pro-life, likely by anti-abortion activist Nellie Gray. Gray also favored preborn rather than unborn, which gave a stronger sense that a fetus was already an actual human being. (Use of the pre suffix has since been adopted by ad agencies everywhere, as in presold rather than used cars.)

Soon after Right to Life was abbreviated, pro-abortion groups countered, truncating Right to Choose to pro-choice, where it remained for decades.

Although the change seemed innocuous and to proponents of legalized abortion, fundamental to a womans individual liberty, pro-choice did not seem to sway those whose beliefs were in the center to the degree proponents had hoped.

The problem was that, while pro-choice seems a wholesome enough phrase, when matched against pro-life, it can easily be seen as something else. The natural alternatives would be either anti-life or pro-death. While many who advocate for abortion rights would dismiss either term as ludicrous and nothing that any reasonable person would believe, in a nation where conspiracy theories are as popular as the Game of Thrones dragons, anti-life might strike a more responsive chord than they assumed.

Rights, on the other hand, has become a word with a bell attached to it, the key in any number of disputesvoting, gun possession, stand-your-ground legislation, even legalized cannabis. And it cuts across political ideology. Rights mean the ability to make decisions for oneself, a cornerstone of conservative and libertarian ideology. It is an active termone must be allowed to assert ones rights. Those who believe in the right to bear arms will have more difficulty dismissing the right of a woman to make reproductive decisions for herself.

Which is why those advocating for stricter gun laws have a different problem. Use of rights has been appropriated by the gun lobby, used in virtually every public statement, advertisement, and article. Any attempt at meaningful legislation, therefore, has been assailed as an attempt to deprive law-abiding citizens of their Constitutional rights, casting those who wish to make it more difficult for disaffected individuals to shoot up a school or workplace as fascist storm troopers.

But gun safety, although not swaying the hardcore, avoids the red flag word control, and thus seems a good deal more palatable to gun owners, the majority of whom favor the safe use and storage of weapons. Even Tennessee Governor Bill Lee, as hard-core right wing as they come, was forced to advocate for improved gun safety laws, not because nine-year-olds were gunned down in a Christian school, but because the Tennessee legislature expelled two young black members who were advocating for that very thing.

What caused Democrats to realize that how one says something can be every bit as important as what one says is not clear. But if they wish to convince independent voters that their vision is superior, they will need to continue to express that vision in terms that ordinary people respond to.

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The message is the message - The Fulcrum

Republicans are quietly laying the groundwork to potentially impeach Homeland Security Secretary Alejandro Mayorkas. | Mariam Zuhaib/AP Photo

House Republicans dug in Wednesday on a two-track strategy to project commitment to border security. Both tracks seem headed toward failure.

On one side, Judiciary Committee Republicans are in the midst of an hourslong debate on a sweeping border and immigration plan theyll vote to advance Wednesday afternoon after weeks of closed-door negotiations.

Meanwhile, Republicans are also quietly laying the groundwork to potentially impeach Homeland Security Secretary Alejandro Mayorkas as he appears before the Homeland Security panel ostensibly to talk about his departments budget request but instead facing a cascade of GOP fury over his handling of the border.

The border bill and Mayorkas impeachment already faced heavy skepticism from a coalition of GOP centrists thats showing no signs of fading. Centrists have raised fears that the immigration plan goes too far in limiting asylum claims, while also blanching at conservative demands to take the historic step of impeaching a Cabinet official.

Though neither House GOP effort has a chance at success in the Democratic-controlled Senate, a failure to get border security measures through the one chamber of Congress they control would mark a significant stumble for Republicans on an issue highly important to their base.

I am confident leadership will not bring anything to the floor that does not have the votes to pass. However long that takes, thats what you want, said Rep. Tony Gonzales (R-Texas), a vocal critic of the Judiciary Committees bill.

Criticism from purple-district Republicans amounts to a political tee-ball pitch for Democrats, who are all too happy to cite their GOP colleagues in making their case against the immigration legislation.

This bill has no chance of being enacted into law, and most of its provisions cannot even pass on the House floor because of opposition from Republicans, said Rep. Jerry Nadler (D-N.Y.), his partys top member on the Judiciary panel.

In a nod toward Gonzales, Nadler added that Republicans should heed the advice of one of their own.

While the intra-GOP fight has blasted to the forefront, given the Judiciary Committees advancement of the border security bill Wednesday, Gonzales remains locked in a monthslong public spat with Rep. Chip Roy (R-Texas), who has vocally pushed more conservative immigration measures.

Though Roys bill isnt in the Judiciary package, pieces of the committees proposed changes to asylum laws closely reflect sections of the Texas Republicans plan.

Many Republicans defended the Judiciary Committee bill, arguing it was needed to push back against more than two years of Biden administration policies and, Rep. Tom McClintock (R-Calif.) added, to restore the successful Trump policy. Republicans argue the border influx was much more manageable under the former president, when the Trump administration placed drastic limits on migrants ability to claim asylum.

Meanwhile, Democrats arent making it easy for Republicans to pass the legislation, offering a slew of potential changes that could appeal to skeptical centrists.

The first Democratic amendment would have stripped out so-called e-verify requirements, which require that certain businesses check the citizenship status of their employees a bid to turn agriculture-minded Republicans like Reps. Dan Newhouse (R-Wash.) and Don Bacon (R-Neb.) against the broader bill.

That failed in the Judiciary Committee along party lines. A second amendment from Rep. Zoe Lofgren (D-Calif.) that would have delayed the implementation of the e-verify mandate also failed.

Im surprised that this bill is in here, frankly. Its never been able to pass on the House floor, Progressive Caucus Chair Pramila Jayapal (D-Wash.) said.

The immigration package is likely to clear the Judiciary Committee on Wednesday without getting tangled in GOP infighting, in part because the panel is stocked with conservatives. But what can clear that panel, Republicans acknowledge, isnt automatically reflective of what could get 218 votes on the House floor.

And Republicans have set an ambitious goal to clear legislation through the chamber by the middle of next month.

In the meantime, the House Homeland Security Committee will hold a vote on its own border bill next week. The Rules Committee is then expected to merge the two proposals, allowing Republicans to make more changes before a final product gets to the floor.

The Homeland Security panel had initially been expected to hold a vote on its proposal this week, but that was delayed by Mayorkas scheduled testimony. And Rep. Mark Green (R-Tenn.), the panels chair, reportedly told donors this month that he believed his committee was making the case for Mayorkas impeachment a move that would require near-total House GOP unity to succeed.

Republicans have so far rolled out two impeachment resolutions against Mayorkas, and neither has won over even close to a majority of the House GOP conference.

One, from Rep. Pat Fallon (R-Texas), currently has 42 cosponsors, while a separate resolution from Rep. Andy Biggs (R-Ariz.) has 32. Democrats, and some GOP lawmakers, have warned that their colleagues are equating a policy disagreement namely, that Mayorkas isnt appropriately handling increased migration levels to a high crime or misdemeanor.

I was dismayed to see that, speaking to a group of campaign contributors last week about todays hearing, the chairman said, and I quote, Get the popcorn, its going to be fun. I think that tells Americans all they need to know, said Mississippi Rep. Bennie Thompson, the top Democrat on the Homeland Security Committee.

During Wednesdays hearing, Green zeroed in on the GOPs argument for impeachment, telling Mayorkas that you have not secured our borders, and I believe youve done so intentionally.

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House GOP plows ahead on risky immigration plan - POLITICO

Back in 1998a decade before HellerProf. Carl Bogus claimed to have discovered a "hidden history" showing that the Second Amendment was adopted to ensure that militias could enforce slave control. Since that theory crops up now and then, in 2021 I posted a comprehensive historical refutation in SSRN, which was subsequently published in Georgetown Journal of Law & Public Policy.

Bogus has now rehashed his 1998 theory in Madison's Militia: The Hidden History of the Second Amendment (Oxford University Press, 2023), which adds nothing new on point. He states up front that he will not address how legal scholars or the courts have interpreted the Amendment, except to assert, without any support, that James Madison and his colleagues "would have been astonished" at the Supreme Court's holding that the Amendment "grants individuals a right to have guns." ("Grants?" No, confirms.)

Bogus failed to address or even mention my paper, which is the only comprehensive critique of his 1998 article, even though it was first published a year-and-a-half before his book. Oxford University's readers who vetted his manuscript were either asleep at the wheel or biased in favor of his argument. This is good example of why courts today, when searching for historical analogues under Bruen, should rely on original historical sources and not skewed declarations by "historians."

Bogus calls his tome "a mystery book" about "why James Madison decided to write the Second Amendment," because "there is no direct evidence about what the Founders intended." But his agenda is clear: instead of "the Minuteman at Lexington, with a musket in his hands the more accurate image [of the Second Amendment] is that of the musket in the hands of the militiaman on slave patrol in the South."

Denigrating America's patriots in order to infect the Second Amendment with racism makes it easier today to criminalize the right to keep and bear arms, and is consistent with other contemporary efforts, such as the 1619 Project, to demonize America and its founders. Not surprisingly, Bogus served on the board of directors of Handgun Control Inc., the anti-gun lobby which morphed into the Brady Center.

Bogus focuses on the militia and ignores what he considers to be the non-existent individual right. The mystery supposedly reveals itself in the Virginia ratification convention of 1788. "Without spelling it out in so many words," Bogus writes, Patrick Henry objected to an exclusive federal power over the militia because it would "subvert the slave system indirectly." George Mason's warning that the disarming of the militia could lead to tyranny was actually a ruse; such were "encoded discussions" about slave control, Bogus speculates, that could not be made "directly" because "public discussion of it was often frowned upon."

According to Bogus, Madison supposedly knew he was wrong in arguing that the states had a concurrent power with the federal government to arm the militia, so he wrote the Second Amendment to "fix this problem." Bogus doesn't realize that most of the debate was about the militia clauses in the text of the Constitution, not what became the noncontroversial right to bear arms in the Bill of Rights. He keeps hitting the state militia piata while ignoring the individual right.

Bogus next pilots his time machine to the American Revolution. Through his hidden history lens, the colonists were concerned only with preventing a slave insurrection instead of defending against attacks by the British army. Yet he quotes a historian as noting: "No white person was killed by a slave rebellion in colonial Virginia."

In real history, on April 21, 1775, Virginia's governor Lord Dunmore seized the gunpowder from the public magazine at Williamsburg. Per Bogus, "This left [Virginians] vulnerable to slave revolts." But Virginians were incensed by Dunmore's confiscation because it left them vulnerable to arbitrary Royal authority. Then they got word of Lexington and Concord. Patrick Henry saw the opportunity to rouse the people to arms, observing, "tell them of the robbery of the magazine and that the next step will be to disarm them, and they will then be ready to fly to arms to defend themselves."

Bogus paints Henry as fearing a non-existent slave revolt rather than what it was a British attempt to disarm the Americans to subjugate them. Henry organized an independent militia to counter the Redcoats, not to do slave patrol duty. Read the original source, ch. XII of Patrick Henry (1891), which explains how Dunmore seized the gunpowder to disarm the Americans, who in turn formed militia for defense against the British.

Bogus doesn't know what to do with the fact that, during the Revolution, four states adopted arms guarantees in their bills of rights, and three of them were in the North. Most states thereafter adopted arms guarantees, almost all of which were read to protect individual rights.

In 1776, Pennsylvania declared "that the people have a right to bear arms for the defense of themselves and the state." That language clearly included self-defense and defense of the Commonwealth.

But to Bogus, this was a collective right only. The hidden meaning of "themselves," he says, is found in a 1754 (actually it was 1755) militia act providing that it "may be lawful for the freemen of this province to form themselves." Yes, that's a typo; the law said "form themselves into Companies." That law also declared "their Duty to fight in Defence of their Country, their Wives, their Families and Estates."

Plainly, the law and, later, the constitution recognized arms bearing for defense of self, family, and the Commonwealth. It wasn't to protect slavery, which Pennsylvania became the first state to ban in 1780.

Vermont adopted the same arms right as Pennsylvania, but its purpose wasn't to support slavery, which was prohibited by the same constitution that adopted the arms guarantee. Per Bogus, it was again a collective right only. Sorry Ethan Allen and your Green Mountain Boys, your gun toting was only at the sufferance of the state.

North Carolina simply declared that "the people have a right to bear arms for the defense of the state." According to Bogus, that was "to make it clear that the right to bear arms for the defense of the state only [sic]." So "themselves" meant something after all?

Massachusetts was the first to add, in 1780, keeping arms: "The people have a right to keep and bear arms for the common defence." Bogus says one couldn't keep for individual reasons, but the law didn't preclude using arms for self-defense. And by the way, beginning the very next year, judicial decisions in the Commonwealth declared slavery to be unlawful.

So Bogus fails to acknowledge that three of the first four state constitutions to recognize the right to bear arms also abolished slavery at the same time or shortly thereafter. Nothing to see here.

While devoting scores of pages to irrelevant subjects like biographies of contemporaries and battles in the Revolution, Bogus ignores critical demands for a federal bill of rights with an arms guarantee. George Bryan, who led the effort to abolish slavery in Pennsylvania, helped draft the antifederalist Dissent of the Minority in that state's ratification convention which included "That the people have a right to bear arms for the defense of themselves and their own state."

Bogus ignores the proposal of Samuel Adams in the Massachusetts convention which would have prohibited the federal government from preventing the people "from keeping their own arms." And he ignores that New Hampshire, whose 1780 constitution was interpreted to abolish slavery, was the first state to ratify the constitution and demand a bill of rights, including that "Congress shall never disarm any citizen." Its leading advocate was Joshua Atherton, whose most prominent argument against the constitution was that it sanctioned slavery.

Were all of these abolitionists naively duped into supporting the right to bear arms before the Second Amendment was even drafted a year later by the crafty James Madison?

Jumping forward to Madison's proposal of the Bill of Rights to Congress in 1789, Bogus imagines that "had" Madison told Roger Sherman of the need to ensure Congress couldn't "undermine the slave system by disarming the militia, Sherman would have been supportive.We shall never know whether such conversation took place." Right, but there's no evidence that Madison said any such thing, and "had" Madison said something else, we wouldn't know that, either.

"Haunted" by Patrick Henry's ghost, Madison proposed the Second Amendment to address Henry's supposed (but nonexistent) argument that Congress must not disarm the militia and thus undermine slavery. Yet despite all, "Madison paid relatively little attention to his right-to-bear-arms provision." The same could be said for this book, which says virtually nothing about that part of the Amendment and instead focuses almost entirely on the militia clauses in the text of the Constitution.

An anticlimactic chapter on the English Declaration of Rights of 1689 is squeezed in at the end, but Bogus doesn't know what to do with its provision that "the Subjects which are Protestants, may have Arms for their Defence," as it had nothing to do with slavery.

The Bogus thesis was picked up by Prof. Carol Anderson in The Second (2021), where she maintains: "The Second Amendment was not some hallowed ground but rather a bribe, paid again with Black bodies." Her argument, a condensed version of which appears in Nikole Hannah-Jones, The 1619 Project, focuses on the deprivation of Second Amendment rights as applied to African Americans.

But the defect at the Founding was not recognizing all individuals as among "the people" referred to in the First, Second, and Fourth Amendments. That failure did not taint the Amendments themselves, but instead led to the belated inclusion by the Fourteenth Amendment of all persons, including African Americans, within the scope of those constitutional rights.

In Arming America, Michael Bellesiles fraudulently made stuff up and invented sources to back it up. To his credit, Professor Bogus alerts readers that he is making stuff up and doesn't pretend to cite sources. One only wonders why Oxford University Press would publish such fiction.

More here:
Second Amendment Roundup: To Preserve Liberty, Not Slavery - Reason

A federal judge in Texas recently agreed with a federal judge in Oklahoma that the national ban on gun possession by cannabis consumers violates the Second Amendment. Kathleen Cardone, a judge on the U.S. District Court for the Western District of Texas, also concluded that the federal ban on transferring firearms to an "unlawful user" of a "controlled substance," first imposed by the Gun Control Act of 1968, is unconstitutional.

The case involves Paola Connelly, who was charged with illegal possession of firearms under 18 USC 922(g)(3) after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. Connelly, who said she used marijuana "to sleep at night and to help her with anxiety," also was charged with violating 18 USC 922(d)(3) by transferring guns to her husband, a cocaine and psilocybin user. Both gun offenses are punishable by up to 15 years in prison.

As a preliminary matter, Cardone held that Connelly's Second Amendment claims were not precluded by prior decisions in which the U.S. Court of Appeals for the 5th Circuit, which includes Texas, upheld Section 922(g)(3). Those decisions, she noted, preceded the Supreme Court's June 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which said gun control laws must be "consistent with the Nation's historical tradition of firearm regulation."

Last February in United States v. Rahimi, the 5th Circuit concluded thatBruen required it to reconsider decisions upholding the federal ban on gun possession by people subject to domestic violence restraining orders. By the same logic, Cardone says in an order published last week, the 5th Circuit's precedents regarding Section 922(g)(3) are no longer binding.

As it has in previous cases involving the same law, the Biden administration argued that the gun ban for marijuana users meets the Bruen test because it is "relevantly similar" to colonial and state laws forbidding people to publicly use or carry guns while intoxicated. Like U.S. District Judge Patrick Wyrick, who deemed that ban unconstitutional in an Oklahoma case last February, Cardone was unpersuaded by that analogy.

"The historical intoxication laws cited by the Government generally addressed specific societal problems with narrow restrictions on gun use, while 922(g)(3) addresses widespread criminal issues with a broad restriction on gun possession," Cardone notes. "The laws, therefore, are not relevantly similar in how and why they regulate firearms, and do not suffice to establish the constitutionality of 922(g)(3)."

A 1655 Virginia law, for example, prohibited "shoot[ing] any gunns at drinkeing (marriages and ffuneralls onely excepted)." To show why that law is not "relevantly similar" to the ban that Connelly challenged, Cardone draws an analogy with contemporary laws that prohibit driving under the influence (DUI).

"The Virginia law regulated guns in much the same way," Cardone writes. "It prevented individuals from using dangerous equipment while intoxication might impair their abilities and judgment. Consider instead a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends. Nobody would say that this hypothetical law is similar to DUI laws in how it regulates cars. The hypothetical law's focus on possession, rather than use, of the vehicle imposes a much greater burden on drivers. A similar distinction exists between 922(g)(3) and the Virginia law."

State laws enacted in the 19th century likewise were aimed at people who publicly carried or fired guns when they were drunk. By contrast, Section 922(g)(3) covers all cannabis consumers, including those who live in states that have legalized marijuana, even when they are not intoxicated, and it applies to private as well as public possession. A truly analogous rule regarding alcohol would categorically ban gun ownership by drinkers.

The government also argued that Section 922(g)(3) is consistent with a purported tradition of disarming "unvirtuous" people. "It is unclear whether legal authorities at the founding era would consider Connelly's homebound drug use 'unvirtuous,'" Cardone says. She notes colonial-era jurist William Blackstone's distinction between "public and private vices": While the former are subject to the "punishments of human tribunals," he said, the latter are subject only to "eternal justice." Blackstone explicitly applied that distinction to drunkenness.

"Connelly's alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior," Cardone writes. "And more generally, nothing in 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes."

Cardone was equally unimpressed by the government's argument that Connelly was disqualified from owning guns because she was not "law-abiding." While her marijuana use, if proven, "would violate federal law," Cardone says, that offense is a nonviolent misdemeanor, and "no one even today reads [Second Amendment history] to support the disarmament of literally all criminals, even nonviolent misdemeanants."

Notably, Cardone is quoting a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.

As applied to Connelly, such a rule seems especially perverse given President Joe Biden's position that marijuana use should not be treated as a crime at all. Cardone notes Biden's "blanket presidential pardon" for people convicted of simple marijuana possession under federal law. Because that pardon applies to conduct that occurred before October 6, 2022, it would cover the marijuana that police found in Connelly's home.

What about the government's claim that marijuana users like Connelly are too "dangerous" to be trusted with guns? "Even if history broadly supports disarming dangerous individuals, there is little evidence that Connelly herself is dangerous," Cardone says. "The Government has not alleged that she committed any violent or threatening acts. Instead, its core allegation is that she possessed and used marijuana."

Cardone notes that more than 20 states "have legalized the recreational use of marijuana, and millions of U.S. citizens regularly use the substance." She thinks "it strains credulity to believe that taking part in such a widespread practice can render an individual so dangerous or untrustworthy that they must be stripped of their Second Amendment rights."

Cardone also notes that Section 922(g)(3), unlike restrictions that hinge on a conviction or a judicial order, deprives people of their Second Amendment rights "without a hearing or any preliminary showing from the Government." They "must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison."

Cardone extended her analysis to the charge that Connelly illegally transferred guns to her husband. His behavior, unlike Connelly's, did indicate that he posed a danger to others: Police arrested him after "they heard several shots and observed [him] standing at his neighbor's door with a shotgun." But that fact, Cardone says, does not preclude Connelly's facial challenge to Section 922(d)(3), which applies even to nonviolent drug users.

Because banning gun transfers to drug users is tantamount to banning possession, Cardone concluded, that provision raises the same concerns as Section 922(g)(3). She therefore dismissed both charges against Connelly.

Unlike Cardone and Wyrick, Allen Winsor, a judge on the U.S. District Court for the Northern District of Florida, thought the government's "historical analogues" were close enough. Last November, Winsor dismissed a lawsuit in which Florida medical marijuana patients sought to recover their Second Amendment rights. The plaintiffs are asking the U.S. Court of Appeals for the 11th Circuit to overrule Winsor.

In response, the Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they're drunk. The Justice Department, meanwhile, is appealing Wyrick's decision, and it can be expected to appeal Cardone's as well.

For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact ofBruen.

Whatever you make of that, cases challenging the constitutionality of Section 922(g)(3) will soon be considered by three federal appeals courts: the 5th Circuit, the 10th Circuit, and the 11th Circuit. Assuming they reach different conclusions, the Supreme Court is apt to intervene, decisively settling the question of whether the right to keep and bear arms includes an exception for people who dare to consume a psychoactive substance that legislators deemed intolerable more than two centuries after the Second Amendment was ratified.

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Another Judge Rejects the DOJ's Argument That Cannabis Users Have No Gun Rights - Reason