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April 2005
Tennessee House leadership discards the rules
Giving Up and Giving In reports on how the Tennessee House leadership killed (or further delayed) a pro-gun bill.
The measure had been reported out of committee and set for a floor vote. A motion was made to instead refer it back to the committee. Several members objected, so the Speaker simply ruled them out of order and proclaimed the motion had passed without objection (hence no need to take a vote).
Continue reading "Tennessee House leadership discards the rules"
Permalink · contemporary issues · Comments (0)
Brady Campaign's questionable tax reporting
From the Public Citizen's webpage on "stealth PACs":
"The group lists the election of pro-gun-control officials among its objectives.2 During the 2002 election cycle, the Brady Campaign disseminated communications involving at least three political contests.3In the Michigan congressional primary pitting Democratic Reps. John Dingell and Lynn Rivers, the Brady Campaign spent a reported $18,000 on a radio ad attacking Dingell’s gun safety record. ... The Brady Campaign and Million Moms March also launched an anti-gun, anti-Dingell Web site during the campaign, www.DingellandGuns.com.4
In 2002, the Brady Campaign also ran ads attacking Maryland Republican gubernatorial candidate Bob Ehrlich5 and distributed direct mail and telemarketing messages favoring Missouri Democratic Sen. Jean Carnahan in her failed bid for re-election.6
The group reported to the IRS that it had zero political expenditures in each year from 2000 to 2002. 7 In effect, the group claimed that none of its communications were intended to influence the outcomes of elections.8
In 2003, the Brady Campaign's PAC was fined $26,000 by the Federal Election Commission for failing to properly disclose $200,000 it spent on mailings in 2000 opposing two Republican House candidates, Reps. Ernest Fletcher (R-Ky.) and Pat Toomey (R-Pa.).9
It looks as if the Million Moms March may have had similar problems with its tax status.
Permalink · contemporary issues · Comments (1)
An interesting memo to Arizona judges and court staff
The Administrative arm of the Arizona Supreme Court sent the following email to all judges and court personnel in the State, linking to an anti-firearms group's FAQ page for information!
The content of the email is mostly unexceptional (except that the author doesn't understand that the Brady Act, the expired assault weapons ban, and the misdemeanor DV ban are three different laws passed on different dates). But to get info on the expiration of the AW ban, it gives the reader a link to the Legal Community Against Gun Violence's page on how to undertake state and local lobbying to extend the AW ban!
From: Messenger, Suzanne
Sent: Thursday, April 28, 2005 11:46 AM
To: Judges - All; Superior Court Clerks; Superior Court Administrators; Limited Jurisdiction Court Administrator's Association; DV Forms Workgroup Membership List; CIDVC - Legislative Workgroup Members; DPS Network Operations
Cc: Court Services; Field Trainers; Support, AOC
Subject: Memorandum: Brady Matter
MEMORANDUM
FROM: Janet Scheiderer, Director, Court Services Division
DATE: April 28, 2005
SUBJECT: Brady Matter
This memo is intended to address questions we recently received regarding the Brady Bill (18 U.S.C. § 922) and clarify any confusion that might exist regarding the federal provisions of Brady that have sunset. Only the Federal Assault Weapons Ban has expired; the Brady indicators and protection orders ARE still in effect.
On September 13, 1994, Congress adopted the Violent Crime Control and Law Enforcement Act of 1994. That Act amended the Gun Control Act of 1968, making it "unlawful for a person to manufacture, transfer or possess a semiautomatic assault weapon." The assault weapon ban expired on September 13, 2004. All other provisions of Brady are still in effect.
Information provided on the following link provides further clarification on this matter: Banning Assault Weapons - A Legal Primer for State and Local Action,
Suzanne Messenger
Administrative Assistant III
Arizona Supreme Court
Administrative Office of the Courts
Court Services Division
1501 West Washington, Suite 410
Phoenix, AZ 85007
Armed pilots
Times magazine has an interesting article on armed airline pilots, noting that they are now making more flights than are air marshals!
In his state of the union address, President Bush singled out federal air marshals—undercover armed agents who fly on U.S. airlines—for helping make "our homeland safer." But he neglected to mention a flying security force that has quietly grown even larger than the marshals: the nation's pilots. Two years ago, the Federal Flight Deck Officer program began training pilots who wanted to carry guns on flights to protect the cockpit.Aviation sources tell Time that more than 4,000 pilots are authorized to carry guns, and each day they fly armed on more flights than do air marshals. The gun-toting pilots, who fly unidentified, now constitute the fourth-largest federal law-enforcement group in the U.S. Pilots in the program, as well as the Transportation Security Administration (tsa), which runs it, claim it has been a big success.
Rather humorous, considering the massive TSA resistance to the idea when it first came up. Here's a recent (yesterday's Congressional Quarterly) story on how it's still resisting....
Continue reading "Armed pilots"
Permalink · contemporary issues
Jeb Bush signs "no retreat" into FLA law
Posted by David Hardy · 27 April 2005 07:26 AMJeb Bush just signed into law the Florida no-retreat bill, which provides that a person need not retreat from an attack, may "stand his ground" and use deadly force if he reasonably believes he or another person is threatened by death or serious physical injury. (The retreat requirement imposes a restriction on self-defense: in addition to a threat of death or serious injury, the defender had to show they had tried to retreat, or that retreat exposed them to greater danger. Court decisions had already removed that requirement within the defender's home or business).
What's remarkable is the press coverage. It's ... actually pretty balanced. Am I the only one noticing a certain change from the days 10-20-30 years ago, when Brady Campaign or Nat'l Coalition to Ban Handguns could make any claim it wanted and have it favorably reported (Forget having their press releases reprinted as news stories: there was one hiliarious case where it went the other way, an AP story was so one-sided that one gun control group cut-and-pasted it to make it their press release).
Here's a summary of some news articles, relayed by Marion Hammer.
Continue reading "Jeb Bush signs "no retreat" into FLA law"
Permalink · contemporary issues
Supreme Court rules that foreign convictions do not make a "felon"
Posted by David Hardy · 26 April 2005 09:37 AMThe Supreme Court this morning ruled that a foreign conviction does not turn the defendant into a "prohibited person" within the meaning of the Gun Control Act.
Continue reading "Supreme Court rules that foreign convictions do not make a "felon""
Permalink · contemporary issues
An armed society is a polite society; a disarmed society is....
Posted by David Hardy · 26 April 2005 08:58 AMFrom The Guardian:
In one video clip, labelled Bitch Slap, a youth approaches a woman at a bus stop and punches her in the face. In another, Knockout Punch, a group of boys wearing uniforms are shown leading another boy across an unidentified school playground before flooring him with a single blow to the head.In a third, Bank Job, a teenager is seen assaulting a hole-in-the-wall customer while another youth grabs the money he has just withdrawn from the cash machine.
Welcome to the disturbing world of the "happy slappers" - a youth craze in which groups of teenagers armed with camera phones slap or mug unsuspecting children or passersby while capturing the attacks on 3g technology.
According to police and anti-bullying organisations, the fad, which began as a craze on the UK garage music scene before catching on in school playgrounds across the capital last autumn, is now a nationwide phenomenon.
And as the craze has spread from London to the home counties to the north of England, so the attacks have become more menacing, with increasing numbers of violent assaults and adult victims......UPDATE: here's a webpage with those wonderful videos of guys beating up people while recording the action for uploading.
Permalink · contemporary issues
Interesting data from NFA Owners' Association
Posted by David Hardy · 26 April 2005 08:20 AMThe NFA Owners' Ass'n webpage has interesting data on BATFE NFA registration problems. Among the other interesting cases:
1. A case in which a widow wished to transfer her late husband's NFA firearm to a collector, BATFE ruled that it was unregistered and thus illegal, she came up with the registration papers, and the agency (at least for a time) refused to recognize them!
2. Use of the Busey videotape as Brady material to reverse a conviction under NFA (Brady material refers to the duty of the prosecution to disclose evidence that may suggest a defendant is innocent; you can't prosecute while hiding evidence suggesting innocence);
3. Another case, US v. LeaSure, where the judge dismissed a case, based on evidence that BATFE clerks may have thrown away the registration papers. More details here in an affidavit by attorney Jim Jeffries.
4. Several other cases in which a firearm was seized as unregistered, only to have the owner come up with the registration papers.
Continue reading "Interesting data from NFA Owners' Association"
Permalink · National Firearms Act · Comments (0)
Early constitutional commentators and the right to arms
Posted by David Hardy · 25 April 2005 04:49 PMThe early American constitutional commentators are a primary source for "original understanding" (which differs from "original intent" in that it emphasizes, not what did the Framers intend, but rather what is the likely intent of the Americans as a whole who ratified the Constitution and BoR).
St. George Tucker's 1803 edition of Blackstone's Commentaries was the first American edition of that work, and generations of American lawyers trained with it. Tucker was appointed to the state Supreme Court by Jefferson, and to the Federal bench by Madison. Tucker's edition sets out Blackstone's discussion of the English Bill of Rights:
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence40 suitable to their condition and degree, and such as are allowed by law.41 Which is also declared by the same statute 1 W. & M. st. 2. c. 2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.To which Tucker adds two footnotes (bear in mind that the original bill of rights had two amendments that were not ratified by 1803, so the Second Amendment was then the Fourth):
40. the right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.
41. Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."William Rawle was likewise prominent in American legal and political circles. George Washington offered him the post of first Attorney General, which he declined for personal reasons, and he served in the Pennsylvania legislature that ratified the Bill of Rights. His 1825 book, A View of the Constitution, became a standard con law text in early American universities. Rawle's view of the Second Amendment is even more robust:
In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.Continue reading "Early constitutional commentators and the right to arms"
Permalink · Framing of Constitution · Comments (0)
How often do you see a Federal agent admitting perjury on videotape?
Posted by David Hardy · 24 April 2005 02:54 PMA while back, word leaked out of an ATFE training video in which the head of their National Firearms Act Branch (in charge of maintaining registrations of full auto firearms, etc.) had said the the registries had a high error rate, but not to worry, his Branch would always testify that they were 100% correct.
ATFE went to extraordinary lengths to keep the video secret. FOIA requests were denied, and when it came up in Brady motions it moved to seal the record. It apparently forgot to seal the record in one case, and the video got out. Here's a compressed MPEG-4 highlight tape (2.2 megs)
[UPDATE: On the linked page, the video is embedded. You have to wait for it to download (about a minute on hi-speed, or many minutes on dialup) and it should start on its own.]
NY Time: end of "assault gun ban" meaningless
Posted by David Hardy · 24 April 2005 11:43 AM(Via Instapundit) The N.Y. Times acknowledges the expiration of the assault gun ban has had no effect.
Despite dire predictions that the streets would be awash in military-style guns, the expiration of the decade-long assault weapons ban last September has not set off a sustained surge in the weapons' sales, gun makers and sellers say. It also has not caused any noticeable increase in gun crime in the past seven months, according to several metropolitan police departments.Of course, the Times has to claim that the reason the ban was meaningless was that it was too "porous." Hard to reconcile with its admission that assault weapons "were never used in many gun crimes" and "Assault weapons account for a small fraction of gun crimes: about 2 percent, according to most studies, and no more than 8 percent."
Continue reading "NY Time: end of "assault gun ban" meaningless"
Permalink · contemporary issues · Comments (2)
Prof. Volokh on DC gun mfr decision
Posted by David Hardy · 23 April 2005 11:09 AMProf. Gene Volokh (UCLA Law School) posts his take on the DC Court of Appeals decision. A snippet:
And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S. You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee.
Now some people may think that such guns should be banned or taxed because some people use them illegally, or gun manufacturers should be held liable for that. Others (including me) think that this is no more proper than allowing lawsuits against car or alcohol manufacturers because some people drive drunk. (There are about as many alcohol-related and car-related deaths of innocent bystanders as of gun-related bystanders.)
But whatever you think of the bottom line, surely it's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.
And I'd also say the same about similar liability rules imposed on other products besides guns. Say that some neo-prohibitionist state indeed decides to make alcohol manufacturers strictly liable for all alcohol-related crimes caused in that state, even if the alcohol is made and sold outside the state. It would be just as wrong for that state to impose its alcohol-prohibitionist rules on out-of-state manufacturers, distributors, and consumers as it is for D.C. to impose its gun-prohibitionist rules.Permalink · Gun manufacturer liability · Comments (0)
DC Court of Appeals ruling on gun mfr suit
Posted by David Hardy · 22 April 2005 10:30 AMThe DC Court of Appeals (not the DC Circuit) has ruled on a gun mfr liability appeal (caveat: pdf file and 48 page opinion).
The suit was based on claims of negligence, nuisance, a DC statute (imposing strict liability for mfrs of assault weapons, which under DC law include any gun capable of firing more than 12 shots without reloading), and some other grounds. The trial court dismissed the suit in its entirity.
A skim of the opinion indicates it affirms all dismissals except for that of the DC statute claim. There, it held that DC itself had no right to sue, but its inhabitants might. One inhabitant was suing, altho he couldn't prove just what mfr's gun had been used (it was only known he was hit by a 9mm). The court holds that it was error to dismiss him at this stage (this was a Rule 12 dismissal, right at the start of the case) since it remains possible that thru discovery he might somehow figure out just what gun it was.
It holds that this imposition of liability would not violate the dormant Commerce Clause, even tho the gun would almost certainly have been sold outside DC. It cites cases holding that tort liability imposed by a state does not violate the dormant clause, even tho it may affect transactions in other states.
Judge Wagner dissents, arguing that the claim under the DC statute should have been dismissed as well.
UPDATE: as the commenter correctly notes, the court did allow DC's subrogation claims as to the two names plaintiffs to survive. I was rapidly skimming the 40+ page ruling and missed that section.
Subrogation is ... well, where you get hit by someone, your auto insurer pays your claim, and has a right by contract to sue the person who hit you to get back what they paid you. In this case, DC has a law providing that where it pays for medical care, it has subrogation rights to sue whoever caused the injury. That may not be much comfort to DC, tho, since (1) the claims are only as to two individuals named as plaintiffs in the suit and (2) apparently they have no idea what guns were used to shoot them.
Continue reading "DC Court of Appeals ruling on gun mfr suit"
Permalink · Gun manufacturer liability · Comments (0)
NRA President Sandy Froman on ABC World News Tonight
Posted by David Hardy · 22 April 2005 09:46 AMThe title says it all. I'm sure it'll go well--she's a trial attorney by trade.
Permalink · contemporary issues · Comments (0)
John Adams and the right to arms
Posted by David Hardy · 21 April 2005 09:22 AMI've previously suggested that the most interesting and informative approach to the framing of the Second Amendment is to assume that each Framer meant what he said, and to seek explanations of why their wording differed. This is at once more challenging, and more productive, than assuming that a Framer who said the militia was essential was really saying that everyone had a right to arms, or that a Framer who said that the people have a right to keep and bear arms was really saying that militia duty (and it was a duty, not a right) is important to a republic.
So let's try that with John Adams, principal drafter of the 1780 Massachusetts Bill of Rights, which recognized that "The people have a right to keep and to bear arms for the common defense." It has two innovations: (1) for the first time, "to keep" as well as to bear, and (2) the "for the common defense" limitaton. Let's look at Adams and see why he might have added the latter provision.... [UPDATE ADDED under "read more"]
Continue reading "John Adams and the right to arms"
Permalink · Framing of Constitution · Comments (4)
Gun Mfr suits and the dormant Commerce Clause
Posted by David Hardy · 20 April 2005 05:39 PMIt seems as if at least some of the (now dying off) suits against gun manufacturers would face a serious problem under the dormant Commerce Clause. Specifically, the suits which allege that a manufacturer should be liable because they sold guns to State A, where they are legal, and should have known that some would flow from there to State B, where they are more strictly controlled.
The Commerce Clause empowers Congress to regulate interstate commerce; the dormant clause application of that forbids States (at least beyond a minimal level) to interfere with interstate commerce. (The dormant clause comes in with some frequency, as States try to forbid shipment of this or that through their borders, or impose special regulations on trains or trucks passing thru the State, or try to tax trucks and other equipment used in multiple States). In the above setting, State B (or its courts) is clearly being asked to interfere with legal commerce to State A.
As a thought experiment, let's flip the setting around. State A is the place of business of a gun manufacturer, and it enacts a law imposing a civil penalty of $100,000 plus attorney fees for filing of a lawsuit (anywhere) seeking to impose liability on a manufacturer within its borders, for a lawful gun transfer. Or its courts evolve a comparable doctrine: such a suit is an abuse of process, rendering plaintiff liable for actual and punitive damages.
Permalink · Gun manufacturer liability · Comments (0)
More on Joyce Foundation buying a law review
Posted by David Hardy · 19 April 2005 09:19 AMBelow, I posted with regard Joyce Foundation underwriting an issue of Forham Law Review, for the apparent purpose of generating anti-individual rights articles. Saul Cornell, organizer of the event, replied, via the Volokh Conspiracy, that he had tried to enlist Prof. Nick Johnson and others to give an individual rights view, but they withdrew.
I made an inquiry to Nick Johnson, and he replied as follows:
Interesting. The moderator of the Law Review, Prof. James Fleming will verify that I complained quite loudly about the lack of balance of the proposed panels, and suggested a long list of names who should be considered to add balance. After several overtures to Cornell by Fleming as intermediary, I withdrew from the panel in protest of the onesidedness of the affair.Also, nearly a year before the event, the Law Review asked and I agreed to present and write for one of the panels. As the event approached, I was relegated to a "commentator" on the Dorf Panel. I
viewed it as an act of bad faith and said so at the time. At the time I withdrew I was the only "standard modeler" in the show. After I withdrew, Cornell asked Cottrol (though he had rejected him as an addition to the panel when I proposed it earlier). After that, he got Ray Diamond. My sense was he was looking only for a token showing. But not any real debate.All of this is well documented in emails to the Law Review, Fleming (the Law Review Moderator) and our Dean.
Permalink · contemporary issues · Comments (0)
Back from NRA convention
Posted by David Hardy · 19 April 2005 08:32 AMDidn't have a chance to blog on the run--too dang busy! Estimates were that 60,000 people showed up.
The DeLay speech at the dinner was rather lively. Protestors were... well, it was rather strange.
One protestor showed up in the morning. She had a pink wig and a sign calling for impeachment of Pres. Bush. She told me she had nothing against NRA, agreed with most of its positions, just thought Bush was undermining civil liberties. When I mentioned that to some NRA exhibitors standing in line, one responded "I agree with her--the Patriot Act is unconstitutional as hell!" A couple of mounted police started moving up behind her, nothing terribly close, altho I suspect they were hinting she should move on. She started shouting that she'd done nothing, why were they after her?
Afternon Saturday there were 2-3 protestors outside. Plus one Libertarian trying to recruit. I talked to a couple of them. One just wanted people to use trigger locks, another kept talking about Christianity and how there's too much violence. Neither were from Brady or Million Moms, and had heard nothing about them showing up.
During the DeLay speech there WERE a lot of protestors, hundreds, but they were chanting "Keep your guns, dump DeLay!" It was strange to see protestors who weren't protesting what was going on.
Listened to Ted Nugent in concert -- it was pretty wild. He did things to the Star-Spangled Banner that I didn't know could be done. But I did wish I'd brought hearing protection!
In the mail balloting for directors, Tom Selleck came in No. 1 and Zell Miller No. 2. The problem is that as a consequence, several long term directors (on the board for years and in some cases decades) didn't make the cut. I personally thing a *few* celebs are good, but the count should be kept low; the cost of losing dedicated people, their experience, and their institutional memory is far too high. Most of the Board's business doesn't actually involve national politics (there are the committees that watch over various types of sport shooting, deal with shooting range problems, urban issues, women's issues, finance, etc), where celebrities have no knowledge, and even the national issues are often complex and require long term knowledge.
The directors did comment on how quickly Selleck could handle a photo op! He's obviously accustomed to having a lot of people wanting their pic taken with him when he has other things that need doing. Strike the pose, get the pic, and get moving!
As expected, Sandy Froman, a lady attorney here in Tucson, was elected President. She's a fireball of energy and has a bunch of things she wants done.
I greatly love Houston, by the way. The attitude is just great. You want to jaywalk? Just don't get hit. I figured that out after seeing people do it with an officer standing next to them. Another officer would just gesture to people to stop jaywalking when he saw a car coming. Outside the board meeting, I asked an officer if smoking was permitted in the hotel. He replied "No, but nobody's looking."
Permalink · contemporary issues · Comments (2)
Packing up for the NRA convention
Posted by David Hardy · 12 April 2005 06:09 PMFlying out early for the conventon in Houston. I'll try to live blog, or at least report, from there.
Permalink · Personal · Comments (0)
Howard Dean on the gun issue
Posted by David Hardy · 11 April 2005 06:28 PMThus spake the chairman of the DNC:
"I was a governor who balanced eight budgets in a row, which is eight more than the Republicans, and I was a governor who was endorsed every year by the National Rifle Association."
Guns, Dean predicted, would never come up - either pro or con - in his 50-state survey of what the Democratic message should be.
"Guns aren't an issue," he said. "If Philadelphia wants gun control, fine. If Alabama doesn't, also fine."
As the 60's song went....You don't have to be a weatherman to know which the wind is blowing....
Permalink · contemporary issues · Comments (4)
Slow blogging today
Posted by David Hardy · 10 April 2005 09:57 PMHad to take a break to film Clayton Cramer, and to replace an evap cooler (which Clayton was kind enough to help me get up onto the roof). He was supposed to fly home this morning, but the Denver airport was snowed in, so he goes back tommorrow. Tonight we had dinner with Kevin Baker of thesmallestminority and then Clayton was off with his enormous binocs to try stargazing.
Permalink · Personal · Comments (2)
Defensive gun use blog
Posted by David Hardy · 9 April 2005 09:34 PMClayton Cramer and Pete Drum have created a blog that reports on use of guns in self-defense.
Seegers challenge to DC law
Posted by David Hardy · 9 April 2005 09:15 PMSteve Halbrook's motion for rehearing in the Seegers case is online here in .pdf.
The DC Circuit had held his appellants had no "standing" to challenge the DC gun law since they were not being prosecuted and had not show a realistic threat of prosecution (which requires a lot more than the fact that it's against the law).I've said before that the funny thing about standing is that if the courts like cases of your type you almost always have it, and if they don't, you don't. I suppose there is some deep legal reason for that strange coincidence, but I haven't yet discerned it.
Steve makes the points that applying the standing requirement in this way essentially cuts off law-abiding citizens from the courts, and that courts should encourage citizens to work out legal issues through the legal system rather than telling them to go out and break the law if they want a ruling.
Makes sense to me, altho I suspect the DC Circuit won't change its mind. Standing is a very convenient "dump button" to avoid ruling in a case where the result might be undesirable to the court.
Permalink · contemporary issues · Comments (1)
Article on Federalization of the National Guard
Posted by David Hardy · 9 April 2005 03:30 PMBlogging will be a bit light today--Clayton Cramer is coming over to be filmed for the documentary--but here's an interesting law review article on the Perpich case (written before the Supreme Court ruled. He notes that the lead-up to the case began when governors objected to their NG units being called to federal service for training missions in South America. The statutes then permitted a governor to block federal call-up for foriegn service in peacetime. Congress amended the law to provide that no governor could object based on the nature of a training mission.
The author notes:
The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control.[125] The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized.[126] Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position.[127] This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support.State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending.[128] This purse string has been used to put the states in a 'catch-22' situation¾retain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia.[129] Although the term 'Troops' in the Constitution was probably intended to apply to standing armies,[130] this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy.[131] For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme.
Permalink · militia · Comments (7)
Saul Cornell responds re: Joyce Fdn buying law reviews
Posted by David Hardy · 8 April 2005 11:03 AMBelow I noted the Joyce Foundation had made a "generous grant" to Fordham Univ. Law Review to create a Second Amendment symposium issue, in which there was not a single noteworthy pro-individual rights author, and said they were back at it again -- a few years ago they made a hefty grant to Chicago-Kent Law Review to publish a symposium issue, which brought in Carl Bogus ( a former member of the Board of Handgun Control, Inc.) as an outside editor, and from which review pro-Second Amendment writers were excluded.
Saul Cornell has replied, via the Volokh conspiracy, saying that these are baseless claims. The response is not much more than a claim that he did try to get some individual rights authors, and one article was pro-individual rights. Not that one article in an entire symposium makes for balance, of course. It's not like there weren't candidates for articles. There's no word of his having bothered to reach, oh, Robert Cottrol, Glenn Reynolds, Wm. van Alstyne, Randy Barnett, Gene Volokh, Don Kates. [In a subsequent post, Cornell states that he did try to get van Alstyne].
What is revealing is that, once again, the law review that gets the generous Joyce grant pulls in an outsider to manage that issue of the review. And the outsider happens to be a fellow who is very much on the anti-individual right side.
Update:You must, of course, apply to Joyce for a grant. And its standards make it clear that the project -- or in this case law review -- is expected to advance the enactment of gun legislation (buzzword = "policy").
From its webpage on its grant priorities:
The Gun Violence Program supports efforts to bring the firearms industry under comprehensive consumer product health and safety oversight as the most promising long-term strategy for reducing deaths and injuries from handguns and other firearms.Program priorities are:
• Supporting state-based policy initiatives in Illinois and Wisconsin that can achieve meaningful reforms and provide a model for gun policy nationwide ....
• Supporting focused research to inform state policy efforts.From its grant FAQ,
Do you fund educational programs in violence prevention? We generally do not fund such programs.....
Do you fund research? We fund research that is likely to have a strong impact on public policy.
Please tell me more about your focus on public policy. We focus our grantmaking on initiatives that promise to have an influence on public policies. That includes advancing the public debate about important policy issues, most notably the need for federal consumer product health and safety standards for the firearm industry. We believe such policy initiatives can lead to broad, systemic changes that affect the most people over the long run.
.....In other words: don't come to us with a law review that will explore the Second Amendment. Come to us with an idea for one that will help enact gun laws. That is what we fund.
For anyone who's interested ... I found some interesting notes on Joyce Foundation's funding of the Chicago Kent issue...
Continue reading "Saul Cornell responds re: Joyce Fdn buying law reviews"
Permalink · contemporary issues · Comments (3)
Starting off the day with a chuckle
Posted by David Hardy · 8 April 2005 09:48 AMThe United Dairy Farmers' chain of stores in Ohio last week posted signs stating that no firearms were allowed. And promptly got robbed five times.
Continue reading "Starting off the day with a chuckle"
Permalink · contemporary issues · Comments (1)
Patrick Henry: gunny
Posted by David Hardy · 7 April 2005 09:59 PMOne of the comments to a previous post mentioned gun want ads in the Virginia Gazette, and Patrick Henry. A quick google found at least one.
Here it is. Warning: large image, takes a while to download on dialup.
It is dated Jan. 26, 1776, and reads "Such persons as have serviceable guns to sell may find a purchaser by applying to P. Henry, jun."
Abstract on Bellesiles scandal
Posted by David Hardy · 7 April 2005 03:46 PMThe abstract of Prof. James Lindgren's paper on Bellesiles is online.
Bellesiles authored "Arming America," which claimed that Americans were poorly armed and had no real gun culture until after the Civil War.
" Superb historians praised it on its release. Yet even from the beginning, there were those who found disturbing differences between Arming America and its sources. As time has passed and other scholars have entered the debate, these errors - which once looked like such serious defects that they could not be true - have been confirmed.
The book and the scandal it generated are hard to understand. How could Bellesiles count guns in about a hundred Providence wills that never existed, count guns in San Francisco County inventories that were apparently destroyed in 1906, report national means that are mathematically impossible, change the condition of most guns in a way that fits his thesis, misreport the counts of guns in censuses or militia reports, have over a 60% error rate in finding guns in Vermont estates, and have a 100% error rate in finding homicide cases in the Plymouth records he cites?"Also, via Gene Volokh, here's the link to the Chronicle of Higher Ed's webpage on the affair.
Continue reading "Abstract on Bellesiles scandal"
Permalink · academic fraud · Comments (2)
Joyce Foundation
Posted by David Hardy · 7 April 2005 12:09 PMGeek with a .45 has an indepth posting on the Joyce Foundation's antigun efforts.
As I note below, these folks are far more anti-Second Amendment than the Brady Campaign, and have about $653 million to spread around.
Permalink · contemporary issues
Akhil Amar and the right to arms
Posted by David Hardy · 7 April 2005 11:07 AMIn a symposium hosted by the American Enterprise Institute, Prof. Akhil Amar of Yale (probably the top 14th Amendment expert in the world) outlined his view of the right to arms. I've got video of the event, and will be posting a page on it soon.
Amar's thesis:
1. The right to arms starts out as an individual but rather "communitarian" right. The focus of the framers is on the citizenry as a whole being armed, and their ability to topple any possibly tyranny. The community acting as a body, probably under the guidance of state governments.
2. The 14th Amendment framers had a somewhat different viewpoint. The former Confederacy was disarming blacks and union veterans to make them vulnerable to Klan terror. "When guns are outlawed, only the Klan will have guns." They wanted citizens armed so as to be individually able to defend against violence, to defend their homes, even if the criminal violence came from State governments. Thus the 14th converted a communitarian sort of right into the quintessential individual right.
Ah--here's Amar's great book. Best right to arms discussion is around p. 264. "But a gun was far more than a badge [of freedom]. Even free blacks (to say nothing of slaves) had suffered unspeakable violence ... and in the wake of Emancipation, many southern governments forbade gun ownership among blacks but not whites. Blacks immediately sensed the grave threat posed by this aspect of the slave codes and took quick action....One of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances of this and other petitions, outlaw the infamous Black Codes, and affirm the full and equal right of every citizen to self-defense. Thus in introducing the Civil Rights Bill ... Lyman Trumbull explicitly took aim at a Mississsippi law that prohibited 'any black or mulatto from having firearms.'"
Continue reading "Akhil Amar and the right to arms"
Permalink · 14th Amendment · Comments (0)
14th Amendment: "privileges and immunities"
Posted by David Hardy · 6 April 2005 07:46 PMSection one of the 14th Amendment provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.For me, the meaning is straightforward. Background: the infamous Dred Scott case of 1857 had ruled that free blacks could never be US citizens. The opinion repeated uses "privileges and immunities" to describe citizen's rights. It begins,
"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."The opinion argues that the creators of the United States could not have intended blacks to be citizens, because that would give them the "privileges and immunities" of citizens. And in listng those P&I the opinion goes right down the bill of rights, including the Second Amendment:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.Sounds like a slam-dunk. The 14th Amendment had a clear target: Dred Scott. By providing that anyone born or naturalized in the US was a citizen, it eliminated that decision's racial barrier. It also changed in a more complex way the concept of citizenship: national citizenship became primary (Dred Scott had also said that a person could be a citizen of a state without being a citizen of the United States: no more would that be the case). And it forbade States to deny the "privileges and immunities" of US citizenship.
From where else but their target Dred Scott would the drafters of the 14th have taken "privileges and immunities?" Dred Scott says the P&I are the Bill of Rights and other similar liberties.
Of course, the Supreme Court had to have its say...
Continue reading "14th Amendment: "privileges and immunities""
Permalink · 14th Amendment · Comments (6)
Fifth Circuit continues to take Second Amendment seriously
Posted by David Hardy · 6 April 2005 04:12 PMIn United States v. Everist, 368 F.3d 517 (5th Cir. 2004), the issue was a challenge to the Federal bar on felons in possession. The Circuit, citing its earlier ruling in Emerson, upheld the bar, noting:
The Second Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id . at 261. It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens. See id. (noting that "it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"). Accordingly, § 922(g)(1) represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.*fn1 Everist's constitutional challenge to § 922(g)(1) fails.*fn2
*fn1 We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains certain that the federal government may not restrain the freedom to bear arms based on mere whimsy or convenience. See Emerson , 270 F.3d at 261.Continue reading "Fifth Circuit continues to take Second Amendment seriously"
Permalink · contemporary issues · Comments (3)
Calling out the militia -- against the Nat'l Guard!
Posted by David Hardy · 6 April 2005 11:16 AMI found this Cleveland Advocate article (Oct 9, 1920) in the Library of Congress online collections. Apparently some Guardsmen formed a lynch mob, and the local government had to "call out the militia" to stop them.
Permalink · militia · Comments (2)
Thought experiment with collective rights theory
Posted by David Hardy · 6 April 2005 10:18 AMWhile we're on Heath's thesis, I'd recommend a look at Don Kate's and Glenn Reynold's William and Mary Law Review article.
Their point is essentially: the collective rights view survives only because no one means to take it seriously; it just furnishes the easiest way for courts to say "we can ignore the Second Amendment." If anyone did take the view seriously, they'd have to conclude that the Amendment was meant to curtail Federal power over the States' military capabilities (at the very least, over their reserve forces, and perhaps even as a repeal of the prohibition on States maintaining troops, as distinct from militia), or as a command to Congress to create a citizen army. Not to mention the entire National Guard system would be called into serious doubt.
Continue reading "Thought experiment with collective rights theory"
Permalink · collective right · Comments (4)
FLA abolishes retreat requirement for self defense
Posted by David Hardy · 5 April 2005 12:34 PMThe Florida legislature has passed a statute abolishing the retreat requirement. The Reuters article indicates that the standard will be "reasonable belief they are in danger of death or great bodily harm." It quotes a Demo state Rep. as saying "All this bill will do is sell more guns and possibly turn Florida into the OK Corral," which says more about the Rep. than it does about the bill.
Continue reading "FLA abolishes retreat requirement for self defense"
Permalink · Self defense · Comments (4)
Militia laws and pre-emption in the early Republic
Posted by David Hardy · 5 April 2005 12:10 PMNorman Heath's article on militia laws and pre-emption raises an interesting point regarding original understanding. It's not so much how early Americans understood the Second Amendment, as evidence of how they didn't understand it, namely as aimed at the Congressional power over militias.
[Update: Norman Heath emailed me to point out that his thesis goes beyond issues of original understanding. Rather, we can reason (1) the question is whether the Second Amendment protects rights of individuals to arms, or rights of States to maintain a militia free of federal interference; (2) from the earliest days of the Republic, and into modern times, the courts made clear that States have no constitutional right to have their militias free of federal interference; ergo (3) the State right theory has nothing to support it, and we are left with the individual rights approach.]
Continue reading "Militia laws and pre-emption in the early Republic"
Permalink · militia · Comments (1)
Duty to retreat
Posted by David Hardy · 5 April 2005 09:09 AMClayton Cramer has a posting on a NY case on self-defense.
NY follows the "retreat" requirement: a person cannot claim self-defense if they did not "retreat to the wall" (first try to escape, unless cornered). There is an exception for a defender in his/her own residence: your home is your castle and you need not retreat out of it. The NY decision says that a person standing in the doorway of his apartment is not "in his castle" and must retreat. (The defender and the deceased apparently had a longstanding feud -- the deceased had stabbed the defender in the past and put him in the hospital for two days. This time the defender apparently began the dispute by pounding on the wall between the apartments: the deceased came over and "got his his face," and he hit him with a pipe.
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Permalink · Self defense · Comments (2)
Joyce Malcolm's latest
Posted by David Hardy · 4 April 2005 08:25 PMJoyce Malcolm has published Civil liberties cannot be defended selectively on a British website.
Excerpts:
"Just when it seemed that government removal of another civil liberty would be greeted with the usual collective shrug, the Prevention of Terrorism Bill provoked a firestorm of fury and dismay. Where can liberty turn? Simon Jenkins pleaded in The Times, (February 23, 2005). Jenkins had prefaced his appeal to the Lords with Magna Carta's famous guarantee: 'No Freeman shall be arrested or detained in prison or deprived of his freehold or outlawed or exiled or in any way molested…except by the lawful judgment of his peers.' . . . .This sudden fondness for juries from a man who was arguing, in the same paper, barely a month earlier, 'Juries: the evidence is clear…dump them' , (January 27, 2005) is indicative of a piecemeal approach to the defence of British liberties that has permitted a growing number of protections to be jettisoned, leaving the newly concerned public wondering, "Where can liberty turn?""
Permalink · non-US · Comments (2)
City of Salina v. Blaksley -- a bit of a mystery
Posted by David Hardy · 4 April 2005 03:12 PMCity of Salina, a 1905 Kansas case, is the origin of the "collective right" view of the right to arms (a bit of a misnomer, since it is actually a "no rights" view). In doing a bit of digging into it, I found the only surviving record from the lower courts -- the docket sheet of the appeal from municipal court to the district court. From the district court appeal was to the Kansas Supreme Court (there was no court of appeals until 1977).
Here's the mystery. The district court docket shows Blaksley received a trial do novo and was convicted on August 29, 1898. What happened to the appeal between 1898 and the Kansas Supreme Court decision in 1905?
Continue reading "City of Salina v. Blaksley -- a bit of a mystery"
Permalink · collective right · Comments (3)
14th Amendment incorporation
Posted by David Hardy · 4 April 2005 09:58 AMIn a segment filmed for my Second Amendment documentary, Prof. Nelson Lund raises an interesting question as to whether the Amendment is the only provision in the Bill of Rights that is guaranteed incorporation under the 14th Amendment.
Short background: the Supreme Court in 1833 held that the federal Bill of Rights only restricts the federal government, not the states. (Some states actually had established churches in the early 19th century, and the Slave codes clearly restricted freedom of speech and press). As of 1868 the 14th Amendment forbade states to deny anyone "due process of law," and by the early 20th century the Supreme Court had begun to find that certain state laws violated due process even if they were enforced with, well, due process of law. The rights which could not be violated by states were termed "fundamental rights."
So what distinguishes a "fundamental" right from any other right?
Continue reading "14th Amendment incorporation"
Joyce Foundation
Posted by David Hardy · 3 April 2005 02:32 PMJust saw a note that the Fordham Univ. Law Review is coming out with a symposium issue on the Second Amendment -- strangely, without a single recognizable pro-individual rights author (and almost without recognizable authors at all).
Aha, thought I -- is the Joyce Foundation at it again? Sure enough, a Google quickly turned this up: "The papers and commentaries presented at the conference will be published in the Fordham Law Review in Fall 2004. The conference was funded by a generous grant from The Joyce Foundation."
Why would I say Joyce is at it again? Well, in 2000 Chicago-Kent Law Review issued a similar symposium issue. A bit of inquiry found ... well, let me give you background first. Law reviews are run on a shoestring. They're edited by students themselves, and very proud of that tradition. Editors get paid a pittance (I got $600 a year back in 1975), and authors of articles never, never, get paid.
A bit of inquiry showed that Joyce had done some serious bankrolling. The law review consented to having an outside editor for that issue, who surprisingly was anti-Second Amendment. (And when pro-Second Amendment law professors volunteered to write, he refused to allow it). He got paid $30,000. Authors of the articles in it got $5,000 each for their time. The rest of the grant went for buying a load of reprints to be sent to judges. So Joyce had essentially bought a issue of the review, stacked the deck of authors, and then mailed a load of copies to judges.
Recently there was an interesting article in the NY Post on how an official of the Pew Charitable Trusts was caught on video explaining how the Trusts had invested millions in campaign finance reform. He explained:
Treglia came up with a three-pronged strategy: 1) pursue an expansive agenda through incremental reforms, 2) pay for a handful of "experts" all over the country with foundation money and 3) create fake business, minority and religious groups to pound the table for reform.
"The target audience for all this activity was 535 people in Washington," Treglia says — 100 in the Senate, 435 in the House. "The idea was to create an impression that a mass movement was afoot — that everywhere they looked, in academic institutions, in the business community, in religious groups, in ethnic groups, everywhere, people were talking about reform."Sounds like Joyce has the act down pat. Use millions to bankroll supposed experts, create fake groups (more on this in extended remarks), and pursue a broad agenda through supposedly modest and incremental measures. And when I say millions ....
Continue reading "Joyce Foundation"
Permalink · contemporary issues
Federalist No. 46: Madison's brilliance
Posted by David Hardy · 3 April 2005 09:24 AMIn Federalist No. 46, Madison calculates (quite accurately, BTW) that the new government could support a standing army of no more than 25,000 men, and
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.A useful quote, of course. But look at the brilliance of Madison's strategy....
Continue reading "Federalist No. 46: Madison's brilliance"
Permalink · Framing of Constitution · Comments (21)
6th Cir. ruling against ATFE on search warrant
Posted by David Hardy · 3 April 2005 08:43 AMFrom Saeid Shafizadeh comes this interesting 6th Circuit ruling. (warning--large pdf file). It's an appeal from a ruling in a Bivens-type civil suit for damages. Gist of it:
1. ATFE's search warrant was invalid. The 4th Amendment requires that a warrant specify the place to be searched and the items to be seized. With regard place, this one specified an entire building, although the items were known to be confined to a special Customs vault in the basement. With regard items to be seized, the warrant said only "see affidavit," and the affidavit was not attached and had been sealed by the court.
2.The agents are not entitled to qualified immunity against suit. That immunity applies when a reasonable law enforcement officer would not have known that what he was doing was unconstitutional. Here, the requirements of specificity are on the face of the 4th Amendment, which has been on the books for a couple of centuries.
Congrats to attorney Richard Gardiner on the win.
Continue reading "6th Cir. ruling against ATFE on search warrant"
Permalink · BATFE · Comments (8)
Is the National Guard the "militia?"
Posted by David Hardy · 2 April 2005 01:16 PMA bit of research into the legal background of the National Guard can be revealing.
There is of course the modern 10 US Code §311, which defines the unorganized militia of the U.S. as essentially all males 18-45 and certain women, and the organized militia as essentially the National Guard. There are also various State statutes (Arizona's defines the state militia to include women as well as men).
10 U.S.C. §311 dates from the Dick Act of 1903, which repealed the Militia Law of 1792, and first wrote the term "National Guard" into law. The Guard as we now know it (dual enlistment: members of State National Guard units required to enlist in the U.S. Reserves) dates from the Army Act of 1940. (Why dual enlistment? In 1912 the Attorney General ruled that NG units could not be sent outside the US, because they were part of (note "part of") the militia, and the Constitution allows the militia to be called up only for domestic purposes -- to repel invasion, suppress insurrection, and execute the laws of the Union. As a result in WWI Guard units were broken up and members drafted into regular Army units as individuals, an inefficient operation and one displeasing to the Guard).
So let's take a look at the legislative history of those statutes....
Continue reading "Is the National Guard the "militia?""
Permalink · militia · Comments (16)
1789 Senate action on right to arms
Posted by David Hardy · 2 April 2005 11:28 AMFrom the Journal of the First Senate, Sept. 9 1789:
"On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'It passed in the negative.
On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'
It passed in the affirmative.
On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
It passed in the affirmative."At this point in the drafting, the Second Amendment was in fifth position. Since "passed in the negative" was then parlance for "was voted down," the first passage documents that the Senate rejected a proposal to word the amendment as "right of the people to keep and bear arms for the common defense."
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Permalink · Framing of Constitution · Comments (1)
Unexpected visitor
Posted by David Hardy · 2 April 2005 09:51 AMBlogging is a little slow today. I'm busy feeding a Great Horned Owl chick (if you can call a fellow this size a "chick") that blew out of my palm tree the night before last. He's now sitting up and the wildlife rescue people are on the way. To get an idea of his size, compare my hand -- and I'm 6'4" and take 37" sleeves, so that is not a tiny hand.
[Update: They got him and he's doing well. In respose to comments, no, by "feeding him" I don't mean I was masticating the mice for him! I only had to give them a couple of chomps before he got the idea.]Permalink · Personal · Comments (3)
An interesting thought
Posted by David Hardy · 2 April 2005 08:12 AMColumnist Dimitri Vassilaro suggests "The slaughter, rape and torment of the citizens of Darfur would end if humanitarian aid included guns."
Amnesty International responds that
""Fighting fire with fire is not a solution to the genocide. It is a dangerous proposition to arm the minorities to fight back."After 70,000 people have been killed, isn't it a bit late to worry about making things "dangerous?" Sounds more like it's time for shipments of "Beecher's Bibles."
[Thanks to Joe Olson for this one}
Continue reading "An interesting thought"
Permalink · non-US · Comments (5)
Iraqis do it again
Posted by David Hardy · 1 April 2005 10:07 PMNY Times, via SF Chronicle, reporting on another case of Iraqis taking up arms against terrorists. [thanks to Don Kates for this find}
Fed-up Iraqis fight insurgent patrol
Shopkeeper, kin kill 3 militants prepared for battleBaghdad -- Ordinary Iraqis rarely strike back at the insurgents who terrorize their country. But just before noon Tuesday a carpenter named Dhia saw a troop of masked gunmen with grenades coming toward his shop here and decided he had had enough.....
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Permalink · non-US · Comments (2)
Standing to challenge DC gun ban
Posted by David Hardy · 1 April 2005 11:31 AMAn interesting article by Alan Gura and Bob Levy in the American Spectator, on standing to sue and the challenges to the DC gun ban.
Continue reading "Standing to challenge DC gun ban"
Permalink · contemporary issues
A complete understanding of the Second Amendment
Posted by David Hardy · 1 April 2005 07:50 AMConventional approaches to the Amendment amount to: (1) cite a Framer who referred either to the militia as a State-run institution, or a Framer who referred to an individual right, and (2) argue that proves the Amendment was meant to protect only a State institution or an individual right. Oh, and (3) explain how the Framers who fall into the other class were really just sloppy with their wording. They said militia, but meant individual right, or said individual right, but were really thinking of militia duty.
But what warrant do we have for assuming that the framers -- an intellectual elite, of a period distinguished by its clear thinking and precise writing -- were just being sloppy? Or that Jefferson, who thought we should have revolutions every 25 years or so just to keep in form, and John Adams, who feared popular revolt almost as much as he feared tyranny, had exactly the same views on this matter?
What if we were to approach the Amendment in a scientific manner, assuming that when two men said different things they may have meant different things, and that our duty is to explain ALL the history as best we can?
This is a theme I began in my article "The Second Amendment and the Historiography of the Bill of Rights" (linked in the sidebar). Let me summarize it ...
Continue reading "A complete understanding of the Second Amendment"