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May 2005
Condi Rice, Larry King, and the transcript
I previously posted regarding an anomaly in the appearance of Condi Rice on Larry King Live, May 11, 2005. The anomaly was also covered by Instapundit and Countertop.
The anomaly was that media reports of her interview prominently featured her position on the Second Amendment -- which was strongly pro, and mentioned that her father had stood off racist thugs with his gun, and if the local sheriff, the infamous Bull Conner, had had gun registration lists, it's obvious that would not have been possible -- yet the transcript of the show had no such passage. In fact, between two station breaks the transcript indicated that the interview switched to an interview of an actor, then back to her.
To settle the matter, I ordered a videotape of the show. Yes, it's all in there, together with her statement that the Second Amendment is as important as the First, and we don't get to pick and choose which rights we defend.
A further mystery, tho -- the show's transcript now DOES show the passage! (Search it for "gun control" to come to it).
The explanation which best fits known fact is that the transcribing firm (which is separate from the show) found the pro-Second Amendment discussion too shocking for their tastes, and took the liberty of deleting an entire station break to station break segment, and pasting in an interview, of an actor, from the previous day.
Permalink · contemporary issues · Comments (0)
Cornell Webpage on the Constitution
The superb Cornell Univ. website (I subcribe to their email alert system, which emails you the syllabus of each Supreme Court ruling the day it comes out) has added a set of pages on the Constitution and Bill of Rights.
Checking out their Second Amendment page, I was pleased to find it as comprehensive as one might desire in such a page, and far more impartial than I had expected.
When matters are summed up with reasonable impartiality, though, a pattern emerges which seems unique to the Second Amendment. The vast bulk of serious legal scholarship goes one way, and the vast bulk of caselaw the other. I can't think of an area of law where you have this pattern, at least in a division this sharp and broad -- what does an amendment mean, rather than the fine details of its application to specific facts.
Permalink · contemporary issues · Comments (3)
Non-gun killer
This guy is a one-man demonstration of the claim that "if a killer can't get a gun, he'll use something else."
After being parolled for having murdered his first wife with a kitchen skillet, he went on a second killing spree, killing his new wife with a hammer, strangled his stepdaughter, and beat his son to death.
Continue reading "Non-gun killer"
Ed Suter on medical costs of gunshot injuries
Some years ago the antis (led in part by the Joyce Fdn) created the approach of treating GSW as a medical issue, which had some PR benefits to their cause. Dr. Edgar Suter, chair of Doctors for Integrity in Public Research, has taken the lead in responding.
Here is Suter's response to an article along these lines, published in the Amer. J. of Preventative Medicine. Suter points out:
1. The article claims that millions are spent treating gunshot wounds ... but the sums mentioned are only 0.064% of America's total medical costs.
2. This is a 60% decline since the last such study (1993) despite millions of new firearms entering the market annually.
3. No one would attempt a cost-benefit analysis without considering benefits (here, lives saved by defensive uses). Estimates are that medical negligence kills about 180,000 Americans annually, after all, but this hardly proves that medicine is useless or doctors should be avoided, since presumably many times that number are saved.
Continue reading "Ed Suter on medical costs of gunshot injuries"
Permalink · contemporary issues · Comments (0)
Nationwide concealed carry for LEOS
Congress recently passed a statute allowing nationwide concealed carry by qualified law enforcement officers. Here's my quick read of what the law allows....
Continue reading "Nationwide concealed carry for LEOS"
Permalink · contemporary issues · Comments (10)
Does gun control lead to erosion of other rights?
Via Don Kates--an interesting article raising that question. The argument is that, based on the British and Australian experience, (1) governments turn to gun control because they are wit's end over violence; (2) that fails to reduce violence, so (3) they start to abridge other rights hoping to find the solution.
Read more....
Continue reading "Does gun control lead to erosion of other rights?"
Judges packing
From Janie (Mrs. Sheriff) Printz -- a news story on how, in the wake of the Atlanta courthouse shootings, judges have done the logical thing and started packing heat on the bench.
Continue reading "Judges packing"
Permalink · contemporary issues · Comments (0)
Amusing satire on collective rights view
Rand Simberg does a good job of reducing collective rights to absurdity. The Framers lived in a time when printing presses were rare, and only responsible people owned them; they could not have foreseen the internet, which allows virtually anyone to spew out misleading ideas, to the entire world, at thousands of words a second.
(Actually, one could make a still stronger historical argument. Until 1695, you had to have a goverment permit to publish a book on politics; in the early 1800s, a Congress that included some Framers enacted the Alien and Sedition Acts, that allowed prosecution of any person who made false and defamatory statements about the Congress or the President).
Permalink · contemporary issues · Comments (1)
Dave Kopel on the right to arms and the Black experience
Reason Online has an article by Dave Kopel covering the Black experience and the right to arms during the early 20th century. RO has also just released a very interesting set of articles by Don Kates, Abigail Kohn (anthropologist and author of "Shooters") and Michael Krause.
Permalink · contemporary issues · Comments (6)
Larry King "blips out" Condi Rice on the right to arms?
A bit of an anomaly: She was on Larry King Live yesterday, and the AP report sums it up:
"Secretary of State Condoleezza Rice, recalling how her father took up arms to defend fellow blacks from racist whites in the segregated South, said Wednesday the constitutional right of Americans to own guns is as important as their rights to free speech and religion.
In an interview on CNN's "Larry King Live," Rice said she came to that view from personal experience. She said her father, a black minister, and his friends armed themselves to defended the black community in Birmingham, Ala., against the White Knight Riders in 1962 and 1963. She said if local authorities had had lists of registered weapons, she did not think her father and other blacks would have been able to defend themselves."
But the transcript from LKL show doesn't show any of that. What's up here?
Continue reading "Larry King "blips out" Condi Rice on the right to arms?"
Permalink · contemporary issues · Comments (4)
Article by progun psychologist
Via Don Kates, here's an interesting article by a fellow who is (a) an academic, (b) a liberal, and (c) a practical shooting enthusiast. This is NOT just light reading: he cites to some very interesting research (a sample: surveys indicate that when the public is asked to evaluate a hypothetical defensive shooting, they are significantly more likely to see it favorably if a man is doing the shooting than if a woman is. Conversely, in a hypothetical where the defender shoots and misses, they are apt to give a woman shooter a pass while being critical of the male as incompetent).
My anti-Michael Moore book out in paperback
"Michael Moore Is A Big Fat Stupid White Man," by Jason Clarke and myself, went to paperback today and is available on Amazon for a little over ten bucks. The hardback spent six weeks on the NY Times bestseller list, and sold 82,000 copiesin 2004, not to mention being translated into Japanese; we'll see if the paperback does as well.
The largest chapter in the book is spent defending NRA and Charleton Heston against Moore's slanders in "Bowling for Columbine," a movie which won the Oscar. So far as I know, it's the first pro-NRA book to hit the bestseller list. The paperback is really a second edition, with two large chapters devoted to his movie "Fahrenheit 9/11."
Here's the link to get to Amazon.
Permalink · contemporary issues
Prof. Reynolds on arms and genocide
Just came across an interesting article by Prof. Glenn Reynolds (as in Instapundit) entitled The Next International Right.
Permalink · arms vs. genocide · Comments (0)
Comment on Bach v. Pataki
Just below, I discuss Bach v. Pataki, the recent 2d Circuit case. Robert J. Cottrol, Harold Paul Green Research Professor of Law at George Washington University, just emailed an interesting comment:
I got a chance to glance at Beck v. Pataki (only the second amendment section). I may be over optimistic but I think it represents a bit of progress. You have the district court saying that the second amendment is a collective right. You have the second circuit essentially pulling back from that and saying that it is an open question that they do not have to resolve and instead saying that their consideration of the matter is essentially precluded by the incorporation issue. Furthermore the second circuit (which is not a particularly friendly circuit) says that Presser may indeed be problematic precedent but that they are nonetheless bound by it (taking pains to distinquish Engbloom, their third amendment case, noting that the Supremes had not spoken on the third amendment and incorporation). It seems this is a far cry from the district court's claim that the second amendment protects only militias. It is also a far cry from the majority decision in Silveira and what a number of the lower federal courts were doing in the 70s and 80s. I regard this and the DC case (ignoring the second amendment and coming up with a trumped up standing standard) as small (don't break out the champagne just yet) steps forward.
I'd quite agree. In the 1980s, the 2d Circuit easily waved the Second Amendment away. For example, in U.S. v Toner, 728 F.2d 115 (2nd Cir. 1984), an equal protection question was raised with regard to the Gun Control Act's ban on possession by illegal aliens, and the Circuit disposed of the "fundamental right" criterion (if a fundamental right is involved, a court must use a higher level of scrutiny in determining whether equal protection has been violated) with a sentence: "....the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "Some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon)..."
Today, the Circuit has to spend a lot of time hedging, and it declines the obvious opportunity simply to adopt the district court ruling. This suggests it sees the Second Amendment question as up in the air rather than settled.
Permalink · contemporary issues
Another pre-Civil War enactment
I previously pointed out that both the 1856 Republican and the 1864 Democratic Party platforms discussed the Second Amendment in an individual rights context. This underscores the point that the "collective rights" theory is a recent invention, not an understanding held by the generation of the framers (or, in this case, even 2-3 generations later).
I just found another such indicator from this period -- the Senate version of the Kansas Enabling Act (1856). (I haven't yet checked the version the Senate approved vs. the Statutes at Large. A quick Google indicates that the situation ended up rather strangely, with the state convention authorized by the enabling act rigging the ratifying vote, the new legislature overriding that, and Congress in the end admitting Kansas as a state notwithstanding).
To complicate further, the Library of Congress link for this is far too long to post here, but it can be accessed via LoC's American Memories Collection.
Sec. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed.
Hmm--and here's the House version, introduced by Rep. Stephens:
"Sec. 16. And be it further enacted, That no person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in said Territory; that the inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus, of trial by jury, of proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. . . . . And the people of said Territory shall be entitled to the right to keep and bear arms, to the liberty of speech and of the press, as defined in the constitution of the United States, and all other rights of person or property thereby declared and as thereby defined."
It's from Journal of the House of Representatives of the United States, SATURDAY, June 28, 1856, p.1126. You can access that via the Library of Congress although you have to do a keyword search for it.
The point made by these legislative votes, and by the inclusion of individual arm/second amendment planks in both party platforms during the 1850s and 1860s, is simply that during this period (and in fact up until the 20th century) everyone regarded the Second Amendment as an individual right. It didn't need to be debated -- the meaning was taken for granted, just as in the era of the Framers.
Continue reading "Another pre-Civil War enactment"
Permalink · Framers to the Civil War
Bach v. Pataki (2d Circuit)
Crime & Federalism reports a new Second Circuit decision on New York's gun permit system.
Appellant Bach is a Virginia resident, described by the court as a "model citizen," who would like to have a New York permit, for self-protection while visiting his parents. He is perfectly willing to apply, but the New York law says permits may only be issued to residents or persons whose principal employment is in New York.
He challenged on Second/Fourteenth Amendment grounds, and the Second Circuit dumped that on the grounds that the last Supreme Court case on it (in the 19th century) held that the Second Amendment is not incorporated into the Bill of Rights, and if that's going to be changed, it will have to be done by the Supreme Court. (For non-legal types: the Court in 1833 held that the federal Bill of Rights only restricts the federal government. The 14th Amendment, 1868, forbids states to deprive persons of the privileges and immunities of federal citizenship, or of due process. When the Court finds that a federal bill of rights liberty cannot be denied by a state without denying due process, the right is said to be "incorporated" into the 14th Amendment).
Of more novelty, he challenged it under the Privileges and Immunities Clause of Article 4 (i.e., not that of the 14th Amendment) which provides that the citizens of each state shall be accorded the P&I of citizens in the several states. (I wondered why there is no Equal Protection challenge -- this is a variant on that). After all, New York creates a permit system and then forbids residents of other states to apply unless their principal business is in NY. Plainly it's giving its own citizens a right that is not allowed to citizens of other States. The court dumps that by saying that the NY scheme is organized locally, so officials have to be able to monitor people locally.
My take: that's not a terribly good argument. After all, a nonresident can still apply IF his principal occupation is in NY (lots of residents of NJ and PA work in NY). A resident of NJ can apply if he works in NY, but not if he doesn't. The court appears to argue that a person working in NY spends a substantial amount of time there, and thus can be monitored.
The argument proves too much and too little. A person lives in NJ -- sorry, no chance to monitor him locally. Unless he works in NY (whether or not be takes a gun to work). And if "monitoring" a fellow only during work hours is sufficient ... then why can they license people who work in NJ, so long as they live in NY? As a practical matter, NY authorities are not "monitoring" anyone, in the sense of following them around, so it amounts to not much more than "if he got into trouble, we'd know about it automatically." That's improbable in the case of a nonresident who only is in their jurisdiction 9-5, M-F.
I rather suspect that if something other than firearms were involved -- say, a State law allowing only residents to apply for certain professions, or refusing to recognize out of state drivers' licenses *and* allowing only residents to apply for an in-state one, since the state has to monitor driving or professional performance -- the result would have been judicial outrage at the discrimination against non-residents.
Permalink · contemporary issues · Comments (8)
Brady Campaign runs afoul of the law ... again
(Via Michelle Malkin: AP reports that the Federal Election Commission has assessed a $12,000 penalty against the Brady Campaign.
A couple of years ago, Brady was assessed $26,000 for violating the campaign reporting rules.
Permalink · contemporary issues · Comments (0)
Light blogging today
I'll be light on posting, since a British documentary crew is filming me regarding the Waco tragedy. For my views on that, see my webpage on the issue. (It took three years of Freedom of Information Act suits to get the data, by the way).
Permalink · contemporary issues · Comments (0)
Arizona gun education bill
The governor of Arizona has signed into law SB 1271, which permits schools to establish a elective one-semester course in firearms markmanship and safety, which includes instruction in the history of the right to arms. I'm told Alan Corwin played a major role in pushing the bill
Text follows....
Continue reading "Arizona gun education bill"
First Amendment comparisons
Below I discussed how the early American commentators treated the right to arms very broadly, speaking lightly of how it restrained those in power.
An interesting contrast to this is how the earliest (Federalist-controlled) courts treated the First Amendment. The jury instructions in US v. Cooper, an 1800 prosecution under the Sedition Act, are instructive. Justice Chase of the Supreme Court, sitting while riding circuit, gives a long instruction which come close to an order to convict, for some rather innocuous criticisms of President Adams. While the Act required that the defamatory speech toward the President or Congress be false, he lectures the jury on why criticism that Adams had established a large navy and a standing army are technically wrong (i.e., the army has to be re-funded every two years and thus to him is not a standing army). He adds that no free government can function if its head magistrate is left open to this manner of criticism, that criticism of the President and Congress is criticism of the jury which helped to elect them, etc. "Take this publication in all its parts, and it is the boldest attempt I have known to poison the minds of the people." "This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election."
As far as truth being a defence, well, "You will please to notice, gentlemen, that the traverser in his defence must prove every charge he has made to be true; he must prove it to the marrow. If he asserts three things, and proves but one, he fails; if he proves but two, he fails in his defence, for he must prove the whole of his assertions to be true."
Then he sentences the guy to six months in jail and a (then massive) $400 fine.
Permalink · Framing of Constitution · Comments (0)
More on the Joyce Foundation
Looking over the Joyce Foundation's webpage on its grants, it's apparent that it's investing SERIOUS cash, as in millions, in promoting the anti-Second Amendment agenda. Its investments range from public relations, to funding lobbying groups, to working on the entertainment industry, to financing publications on the constitutional issues. And some serious cash is being spent. Samples:
Legal Community Against Violence
San Francisco, CA $380,000
For general support. (2 yrs.)
National Opinion Research Center
Chicago, IL $39,499
To add a selection of gun-related questions to its 2006 General Social Survey. (2 yrs.)
Consumer Federation of America
Washington, DC $75,000
To educate the public and policy makers about the public health and safety impact of failing to regulate guns, particularly assault weapons, as consumer products. (9 mos.)
Entertainment Industries Council, Inc.
Reston, VA $125,000
To work with the entertainment community to accurately and responsibly address gun violence on television. (18 mos.)
Illinois Council Against Handgun Violence
Chicago, IL $300,000
To create a new network of state-based gun violence prevention groups. (1 yr.)
Illinois Council Against Handgun Violence
Chicago, IL $400,000
To educate the public about the risks of guns in the home and to enhance its media and communications presence (including on the Internet), its statewide organizing, and coalition building, and its funding and membership base. (1 yr.)
Ohio State University Foundation
John Glenn Institute for Public Service & Public Policy
Columbus, OH $125,000
To host a symposium at Stanford Law School on the connections between the Second Amendment and the Fourteenth Amendment, to publish papers in a major law review, and disseminate findings via the Web. (2 yrs.)
Violence Policy Center
Washington, DC $500,000
To provide research and technical assistance to Midwest-based gun violence prevention advocates. (1 yr.)
WAVE Educational Fund
Milwaukee, WI $250,000
To educate the public about the risks of guns in the home and to enhance its media and communications presence (including on the Internet), its statewide organizing, and coalition building, and its funding and membership base. (1 yr.)
New York Academy of Medicine
New York, NY $100,000
For its program Doctors Against Handgun Injury supporting a coalition of national medical societies to promote public health-oriented gun policies and practices. (2 yrs.)
Ohio Coalition Against Gun Violence
Toledo, OH $150,000
For general support, including state and federal policy advocacy to prevent gun violence. (21 mos.)
Permalink · contemporary issues · Comments (4)
Law prof's take on Florida law
FindLaw has a Brooklyn law prof's take on the new Florida law. He agrees that in abolishing retreat Florida is just going with the trend, although he has big problems with the way it treats as justified any killing that occurs while the aggressor is forcibly and unlawfully entering a house or car (his argument being that at least one legislative report describes this as an irrebuttable presumption that the aggressor intended to kill). Thanks to Stop The Bleating,, who's temporarily unable to blog due to laptop failure.
Permalink · contemporary issues · Comments (2)
Atlanta papers on Florida no-retreat law
Below I'd noted that Florida newspapers covering that state's recent self-defense law seemed strangely ... evenhanded. They actually reported what the law did (remove the requirement of "retreat" for self-defense outside the home, while still requiring that a person reasonably believe they were in danger of death or serious injury due to attack, and recognize a presumption that one is in such danger if the attacker is an intruder into the person's home), and gave both sides of the issue.
Now the Atlanta Journal-Constitution brings back memories of what press coverage of gun issues was like in the bad old days. "Florida has ignored common sense and public safety by adopting a law that encourages violent confrontations between its residents. Worse still, the National Rifle Association is gleefully planning to lobby for similar changes in other states," it writes. The law will worsen the State's "gunslinger environment" (under which the homicide rate has steeply fallen). It "limits the ability of police to arrest whoever claims self-defense." (No kidding; laws which establish defenses to criminal charges generally have that effect). And ends with "Let's hope the NRA shoots another blank if it tries to introduce Florida's recipe for mayhem to Georgia."
Now THAT's the press coverage we're accustomed to seeing!
Permalink · contemporary issues · Comments (1)
Personal jurisdiction
Overlawyered raises an interesting question regarding the DC gun liability suit: isn't lack of personal jurisdiction over the manufacturer a defense?
Personal jurisdiction amounts to -- you can't sue a person anywhere you want: in order to sue a person in a State (or here, DC) you must be able to prove he had some substantial "contacts" with the State. If he doesn't have a real presence there (headquarters, place of doing business, etc.) you have to show other "contacts."
As I recall, the Supreme Court Asahi case split along two lines. The plurality (not enough for majority) position was that the defendant company must have "purposefully availed" itself of the State's markets. Advertised to customers there, things like that. The minority held with a broader "stream of commerce" theory. My memory's a bit foggy, but it amounted to putting things in the stream of commerce when you knew they would go to that State, even if you yourself didn't promote them there.
This might be a especially interesting argument in the DC context, since the firearms in question were forbidden to be sold in DC, hence it would be 100% foreseeable that even the stream of commerce would not lead to their being sold there. And "it was sold at retail elsewhere and somehow private purchasers (or thieves from them) took it to DC" probably would fly under neither theory.
My own experience with personal jurisdiction defenses suggests that, absent this, they're hard to win...