For at least the last two years, far right groups have opposed an imaginary treaty which, in the words of the John Birch Society, would “cede control of private Americans’ small arms ownership and use to the United Nations.” This treaty does not exist. Snopes described reports of such a treaty as “scarelore.” ThinkProgress debunked Sen. Rand Paul’s (R-KY) attempt to fundraise off this imaginary treaty more than a year ago. PolitiFact rejected claims that any UN treaty will limit Second Amendment rights as recently as last week.

So, of course, two GOP Congressmen have introduced legislation to block this imaginary treaty:

“The Second Amendment is an individual constitutional right and we must never allow that right to be trampled on by an international treaty,” Rep. Ben Quayle (R-Ariz.) said Monday. “This U.N. treaty is a direct threat to American sovereignty and the constitutional rights of all Americans. . . . Quayle introduced the Second Amendment Sovereignty Act, H.R. 5846, to counter the U.N.’s Arms Trade Treaty, which he and co-sponsor Rep. Denny Rehberg (R-Mont.) said could limit the rights U.S. citizens have under the Second Amendment. Quayle said the treaty is expected to be concluded sometime this year.

For the record, even if the United Nations wanted to propose a treaty restricting Americans’ Second Amendment rights, and even if President Obama was absolutely determined to support such a treaty, the treaty would be void for violating the Constitution. As Justice Hugo Black once explained, the Supreme Court has long “recognized the supremacy of the Constitution over a treaty.”

At a meeting of Texas Tea Party leaders yesterday, Sen. Rick Santorum (R-PA) appeared to suggest that armed resistance could be necessary to combat some unnamed violations of the Constitution:

Santorum was then asked if the Second Amendment is only for hunting and sports, to which he responded emphatically, “the Second Amendment is there to protect the First Amendment!” His own family possesses firearms, he says, both for hunting and handguns for personal protection. He cautioned that if Obama is reelected, the Supreme Court’s Heller Decision, which holds that individuals have a right to possess a firearm for traditionally lawful purposes, such as self-defense within the home, will be in jeopardy.

In reality, of course, the judiciary exists to protect the First Amendment. Santorum’s apparent belief that Second Amendment remedies should fulfill this purpose suggests a vigilante approach that is difficult to square with the rule of law. If each citizen can both decide for themselves what the First Amendment means and then use their personal arsenal to enforce it, the inevitable result is chaos.

Moreover, it is unclear just what kind of “First Amendment” violations Santorum believes justify armed resistance to the United States government. This is not the first time, however, Santorum used violent rhetoric in the context of the First Amendment. Santorum is a leading proponent of the false claim that the Obama Administration’s pro-contraception policy violates the First Amendment’s protection of religion, and he recently suggested that Obama shows sufficient disregard for Santorum’s religious world view that it will lead America “to the guillotine.”.

Yesterday, Rep. Gabrielle Giffords (D-AZ) announced that she would resign from Congress to focus on her recovery from the horrific mass shooting where she was targeted by mentally ill shooter Jared Lee Loughner. Nine days before this announcement, however, the United States Court of Appeals for the First Circuit handed down a decision which could drastically limit lawmakers’ ability to keep guns away from mentally ill potential assailants such as Loughner.

Although the Supreme Court’s decision in D.C. v. Heller is best known for holding for the first time that the Second Amendment protects an individual right to keep a firearm, Heller also made clear that this right is not absolute. Laws prohibiting concealed weapons, or the carrying of “dangerous and unusual weapons,” or the carrying of firearms in “sensitive places such as schools and government buildings” are still entirely constitutional, as are laws prohibiting the possession of firearms by felons or the mentally ill.

The First Circuit’s decision in United States v. Rehlander, however, suggests there is a serious limit on this ability to keep guns away from people who lack the capacity to handle them. Although the court invokes a technical doctrine to avoid saying so definitively, the court strongly suggests that mentally ill individuals must be allowed to carry guns until they receive a fairly elaborate hearing declaring them unfit to use a gun:

Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, and adjudicatory hearing, including the right to offer and test evidence if facts are in dispute, is required. It is evidently doubtful that a [Maine temporary committment hearing] provides the necessary process for a permanent deprivation.

If this decision stands the test of time (and, potentially, the Supreme Court) it would drastically alter society’s power to keep guns away from the mentally ill. Loughner, for example, was deemed unqualified to join the military and was asked to leave his community college due to mental health issues, but it is unlikely that either of these incidents meet the bar described by the First Circuit as sufficient to allow someone to lose their ability to carry a firearm because they are mentally ill.

(HT: Eugene Volokh)

The NRA threw its full weight behind a bill called the National Right-to-Carry Reciprocity Act, and members of Congress leaped to do their bidding. In all, 246 lawmakers signed onto the bill in the House, all but ensuring that it will pass that chamber, and more than half of the Senate Republican caucus co-sponsored an even more radical form of the bill during the last Congress. If the bill becomes law, it would allow nearly anyone to shop around for the one state that is willing to issue them a license to carry a concealed firearm, and then force other states to honor that license.

Notwithstanding any provision of the law of any State or political subdivision thereof, related to the carrying or transportation of firearms, a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a government-issued photographic identification document and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State, other than the State of residence of the person, that–

‘(1) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

‘(2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

Many states’ licensing rules for concealed carry are shockingly lax. Florida, for example, issued 1,700 concealed carry permits to people with “criminal histories, arrest warrants, domestic violence injunctions and misdemeanor convictions for gun-related crimes.” Because Illinois is the only state that does not have a concealed carry law, the NRA’s bill would render out-of-state visitors immune to every state but Illinois’ licensing laws — so long as they obtained a license from a state that practically gives them away.

Lest there be any doubt, this law has nothing whatsoever to do with the Second Amendment. As Justice Scalia suggested in District of Columbia v. Heller, there is no constitutional right to secretly conceal a firearm from the people around you. In Scalia’s words, “[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon 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.”

Yet, while forcing New York to honor Florida’s poorly vetted carry licenses has nothing to do with the Second Amendment, it flies directly in the face of the right’s professed views on the 10th Amendment’s guarantee of states rights. The NRA’s bill is a direct attack on each state’s ability to determine on its own how best to protect the public’s safety.

Ultimately, however, this kind of fair weather tentherism is nothing new. Conservatives hate federal regulation of health care, until they want to invalidate state tort law or immunize the insurance industry from state consumer protection law. They label Medicare, Social Security and even child labor laws violations of states rights, then cheer Supreme Court justices who would give banks, drug and tobacco companies sweeping immunity from state law.

In other words, the right’s lockstep embrace of the NRA’s concealed carry bill is just one more example of conservatives’ willingness to claim that the Constitution means whatever they want it to mean.

Texas Gov. Rick Perry’s (R) radical belief that everything from Social Security to Medicare is unconstitutional rocketed him to the front of the GOP presidential race, but he collapsed just as quickly once GOP voters learned that he supports allowing undocumented immigrants to pay in-state tuition at public universities. Perry’s loss has been Herman Cain’s gain — Public Policy Polling most recent round of polls shows the former pizza executive springing to the front of the GOP pack.

Yet the GOP electorate’s quest for total ideological purity could be Cain’s downfall as well. Just last June, Cain told CNN’s Wolf Blitzer that — although Cain claims to “support the Second Amendment” — he also believes that state governments should have the power to regulate or even ban firearms if they choose:

BLITZER: Should states or local governments be allowed to control the gun situation…

CAIN: Yes

BLITZER: So the answer is yes?

CAIN: Yes. The answer is yes, that should be a state’s decision.

Watch it:

Cain’s belief that Congress can’t touch guns but states can not only places him well to the left of the NRA, it also places him at odds with the Supreme Court. In McDonald v. Chicago, the justices held 5-4 that the Second Amendment applies equally to the states and to the federal government. The four justices who agreed with Cain that states can freely regulate guns were left-of-center Justices Stevens, Ginsburg, Breyer, and Sotomayor.

Cain would only have to watch Sotomayor’s confirmation hearing to learn that his relatively moderate position on guns places him well outside the Republican mainstream. Senate Republicans savaged Justice Sonia Sotomayor during her confirmation hearings because she took the Herman Cain position on gun control while she was a lower court judge — although Sotomayor’s decision was the correct one because it came down before the Supreme Court changed its interpretation of the Second Amendment in McDonald.

Because McDonald was such a closely divided decision, the Supreme Court would drastically roll back Second Amendment rights if a hypothetical Cain Administration appointed just one more pro-gun control justice to the Supreme Court. If that happened, President Cain would do more to strike at gun owners’ rights with just one appointment that President Obama will accomplish in an entire presidential term.