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June 2005
Police chiefs poll
The National Assn of Chiefs of Police has released its annual poll of police chiefs and sheriffs. Among the results:
93.6% stated they support private ownership of firearms.
63.% believe that liberalizing concealed carry will reduce crime.
On the side, 28% supported decriminalizing marihuana, and 42% supported medicinal marihuana.
The firearm results are encouraging, since this is a poll of the top dogs in each department, who have historically tended to be much less pro-gun than the average officer working for them.
Permalink · contemporary issues · Comments (2)
New Oregon decision on right to arms
The Oregon Supreme Court just handed down State v. Hirsch, holding that:
1. The state right to arms is an individual right (rejecting the state's claim that it was some manner of communitarian, i.e., collective, right);
2. Even felons are within its scope (citing a 19th century statute that created a lien on felon's property, but exempted their firearms from it); but
3. The prohibition on felons owning is a reasonable regulation of their right.
Read more...
Continue reading "New Oregon decision on right to arms"
Permalink · contemporary issues · Comments (2)
Police will protect: Castle Rock v. Gonzales
The Supremes have just issued a ruling in Castle Rock v. Gonzales (pdf version available here.
Essentially, the plaintiff obtained a domestic violence restraining order against her husband, which order contained a command that law enforcement arrest if there was probable cause to believe he had violated it. The husband kidnapped their three children, and she reported it to police. They responded there was nothing they could do, but call back in a few hours. Husband later called and said he had the kids at an amusement park. She asked police to go over there or put out an all points bulletin for him -- they declined. She called repeatedly through the night, and was told to wait. The husband turned out to have murdered the three kids and was killed after he drove to a police station and came in shooting.
The mother sued under 42 USC 1983, alleging that the town had a pattern of nonenforcement, and this amounted to a violation of the 14th Amendment's requirement that no state deprive a person of life, liberty or property without due process. The Supreme Court uphold the dismissal of her complaint. What rights State law gave her, in terms of enforcement of the order, were not property interests protected by the constitution. State law did not give her an absolute right: it commanded that the officer use every reasonable means to enforce the order, that he shall arrest unless it proves "impractical," and this indicated that the right to enforcement was discretionary with the government (and hence not a matter of her "property"). Moreover, such right has little resemblance to any ordinary concept of property. "In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations."
Souter and Breyer concur. Stevens and Ginsberg dissent. Their points: if she had hired a private security firm, wouldn't that contract have been "property"? They argue that the State law did in fact make enforcement mandatory; at the very least, the Court ought to certify the question to the State supreme court for determination.
Permalink · Self defense · Comments (0)
Scots and their knives
From the Evening Times: Scottish Justice Minister Cathy Jamieson is proposing to require that only licensed dealers sell "non-domestic knives" (any pointed knife not made specifically for household purposes), and to ban most sword sales. Purchase of such a knife would require a permit "similar to a firearms permit."
The proposal is driven by the fact that almost half the murders in the country are committed with knives.
The epidemic of edged weapons violence seems to be an international one. In Australia, where the Minister for Justice and Customs reported "knives and other sharp instruments are the most common weapons used in homicides, and are used in more homicides than both blunt instruments and assault leading to murder put together."
According to the FBI, in the US only 13% of homicides involved edged weapons.
Permalink · non-US · Comments (3)
Trial court wierdness on self-defense
The Indiana Supreme Court just reversed a homicide conviction where the trial court, for reasons not apparent, forbade the defendant to question jurors as to their attitudes on self defense, or to mention that defense in opening argument. The pdf (7 pages) is here. It sounds as if the trial court also ordered forbade defendant to put on evidence of self-defense, but relented at some point and let him at least use his own testimony to that effect.
Even stranger, the defense attorney did not object. The Supremes however regarded this as fundamental error and reversed notwithstanding the lack of objection. If self-defense was a defense, the defendant was entitled to question jurors during their selection to see if they had any feelings aganst self-defense.
Permalink · Self defense · Comments (0)
Toward an operational definition of the militia
I'd previously discussed the relationship of the National Guard to the concept of militia (see here, and here, and here). Here I'd like to take a functional approach: what did the Framers see as the critical features of the "militia," and how well does the present NG match up to them?
We start with Madison's Federalist 46. Madison is answering fears that the Army Clause will permit Congress to establish, and perhaps use oppressively, a standing army. Madison responds that the militia is the protection against that. He attributes two key features to the militia:
1. It is officered by men chosen by State governments, not the Federal.
2. It is so large that it can defeat the any army that Congress could raise. He estimates the militia would outnumber the largest possible army by 25:1. " It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."
Others of the period would have added:
3. It comprises the entire community, not just the "young and ardent" (Letters from the Federal Farmer) who might be inclined to adventure and ambition (remember that in 1789 a 45 year old had outlived the average lifespan and was probably a grandfather) and
4. It includes (in fact, in classical republican theory, should be limited to) landowners who have the most to lose and nothing to gain from military rule.
It looks to me as if the present NG comes nowhere near meeting 1, 2, or 3, and does an inadequate job at best of 4. So the NG is not, in a functional sense, fulfilling the role that the Framers desired for a militia. We might go farther: at the moment, its main functions are serving as a reserve component of the military, and providing manpower for war overseas (which, as I've pointed out, was specifically NOT a militia function -- it could only be called out to repel invasion, suppress insurrection, and execute the laws of the Union, three objectives that can only be met inside the US).
Permalink · militia · Comments (2)
Militia Act of 1792
RKV suggested a reference to the original militia statute adopted by the First Congress might be interesting, with regard to showing what "militia" meant to the framing generation. Here's the Militia Act of 1792, and the Calling Forth Act. The former's relevant portion is:
"An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside....
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
The Act remained on the books until 1903, when the Dick Act replaced it with the language now found in 10 U.S. Code sec. 311:
"Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
Permalink · militia · Comments (10)
Interesting statistical work
Just came across economist Alexander Tabarrok's webpage. I found a couple of interesting papers there.
1. He realized that the varying levels of terror alert in Washington DC lead to varying concentrations of police in certain areas, and this could be used to verify whether increased police presence really does reduce crime. What is needed for this is a variance in policing that is unrelated to street crime -- hard to find, since usually police presence comes as a reaction to crime increases. He ran the data, and found that crime dropped around 6.6% on days when police forces were increased. There was an esp. strong effect on auto theft and thefts from autos, outdoor offenses where being seen by an officer is a particularly high risk.
2. He re-ran Lott's famous and controversial study concluding that enactment of "shall issue" carrying concealed weapons laws reduces crime. (I don't know enough about statistics to understand just what he did different, but it certainly sounds like a significant change in method). His conclusion was that such laws indeed decrease violent crime, although they increase property crime. One explanation he suggests is that criminals may abandon armed robbery, still want to make money illegally, and thus turn to burglary and nonviolent theft. Still, a change for the better.
Permalink · contemporary issues · Comments (0)
Looking to future Supreme Courts
Prof. Robert Cottrol of George Washington Univ. college of law has raised an interesting question in an email, which I'd like to put up for discussion. He prefaced it with a running joke he has -- the problem with advocating the right to arms is the liberals don't like arms and conservatives don't like rights.
" Basically if you look at the last 50 years, if not before, where liberals have seen a right they have moved for vigorous enforcement of that right. Their view has been that nothing can be allowed to stand in the way of protection of an individual right. Convservatives on the other hand have tended to be very timid and tentative in the enforcement of rights and indeed have been generally reluctant to even discuss rights. They have tended to oppose (14th Amendment) incorporation, now only reluctantly accepting it as a fait accompli -- -- and even then probably as a fait accompli that they would overturn if the opportunity presents itself. On the second amendment, their support has quite frankly been rather anemic -- -- it's clear that many support it opportunistically, i.e., because the Democrats over the last ten years have been dumb enough to embrace European style gun control as a core value in a nation where roughly 50% of the population lives in households with firearms. Conservatives have adopted the second amendment because it is good politics, but I don't see, with some exceptions, the kind of passion and commitment that liberals show for rights that they value.
So perhaps the discussion we might have is over the long run will the second amendment be best protected by people who are generally hostile to the right but who have shown a broader commitment to individual rights or by people who are at least nominally in favor of the right but who have shown a rather weak commitment to individual rights generally?"
Let me add to Bob's point a few practical examples. Robert Bork, the ultimate conservative-right nominee for the Court. After his nomination bid ended, his writings made it quite clear that he was strongly anti-Second Amendment and would have been a disaster for the cause. He was not exactly supportive of the concept of rights as a generality (being of the statist branch of conservativism) and held the same view of the Second Amendment.
Conversely, Professors William van Alstyne and Akhil Amar, both very liberal, but both strongly supportive of the right to arms (albeit with limitations), probably because, having concluded that there was a right, they instinctively feel obliged to protect it. And Instapundit has an interesting article on the late Byron "Whizzer" White, a generally liberal Justice, but who had something of a libertarian streak that led him to vote to strike laws that just made no sense. (That is, he bucked the trend that if a law is subjected to "rational basis" analysis it is always upheld -- for him "rational basis" meant something more than "uphold the law if we can dream up any rationale for it that is not completely psychotic").
The ultimate nominee would of course be someone who has already proven to be pro-Second Amendment, someone like Judge Kozinski. But assuming we can't have that, is is better to cheer on someone who is known to be conservative, or perhaps a liberal who is open to being won over?
UPDATE: A rather modest commenter (I'd expect with a good website like that that he'd have been plugging it earlier!) posts a very informative webpage on Virginia legal provisions relating to arms and the militia, colonial VA classified ads (yes, there were such things in the 18th century) relating to arms, contemporary VA law relating to arms, and lots of other related matters. Soon as I get a chance, I'll add it into the sidebar.
ANOTHER: Bob and Clayton Cramer have pointed out the curious split of the Supreme Court in the recent case holding that a foreign conviction is not a felony under the Gun Control Act. Voting for that position was the liberal wing -- Breyer, Stevens, Sutor, Ginsberg. Voting against it, and thus for broader reading of the GCA, were the staunchly pro-2d Amendment Thomas and Scalia.
Continue reading "Looking to future Supreme Courts"
Permalink · contemporary issues · Comments (11)
Genocide as a public health risk
(Via Instapundit) Dr. Eric Larson and Dr. Reva Adler have published an interesting article on analysing genocide as a public health risk. They point out that in the 20th century far more humans were killed by genocide than by war (192 vs. 110 million), and suggest that we begin by studying the preconditions of genocide and its warning signs.
I'd list disarmament of the victims as one of the preconditions, of course...
Permalink · arms vs. genocide · Comments (2)
Fifth Circuit Commerce Case
The Supremes just denied cert. in an interesting Fifth Circuit commerce clause case. The panel opinion is here and the opinion of six judges dissenting from denial of rehearing en banc is here. (both in .pdf)
Facts: a landowner wanted to develop land on which there were caves whose pools held critters protected by the Endangered Species Act. The ESA prohibits "taking" such, which includes killing or harming them by development. The landowner challenged this as applied (i.e., as applied to this one situation) as beyond beyond Commerce Clause powers. The panel opinion upheld the statute as applied.
The panel opinion does a great job of laying out standards, but I agree with the en banc dissent that, having laid them out, it applies them in a contradictory fashion. The two key issues revolve around "aggregation" -- when can Congress argue that while the particular activity at issue doesn't sufficiently affect commerce, all activities of this type in aggregate would.
The panel lays out two criteria for aggregation:
1. The regulated activity must be commercial in nature. Noncommercial acts (usually) cannot be aggregated. (US v. Lopez -- possessing a gun in a school zone is noncommercial and cannot be aggregated). The panel recognizes that the focus must be upon the regulated activity (here, taking cave shrimp) and not upon its motivation (to develop the land). But then the panel holds that the ESA can apply because the majority of takings covered by it will have an economic motive. [Apart from the fact that this contradicts the standard it just laid out, this is essentially aggregating all conduct regulated by the statute in order to decide whether aggregation is in order].
2. Regulation of the particular conduct must be "essential" to the entire regulatory scheme. (Example: the medicinal pot case, and the argument that allowing medicinal pot would enable people to undercut the entire regulation of marihuana). That's hard to see in this case. Allowing this landowner to nuke some cave shrimp would hardly lead to wholesale evasion of the ESA. But the panel treats ESA as an plan to conserve all listed species, and argues that allowing extinction of one species would undercut that. Again, the ruling contradicts the standard just laid out. It's hard to see how any situation could fail this "essential to the regulatory scheme" criteria
The panel opinion gives great insight into the aggregation principle -- unfortunately, its holding illustrates that, principles or no principles, the lower federal courts HATE to find anything outside the Commerce Clause power!
Permalink · Commerce Clause · Comments (1)
5th Cir. rules on illegal alien as prohibited person
The Fifth Circuit has issued an interesting opinion relating to the status of an illegal alien vis-a-vis the Gun Control Act. United States v. Orellana, 405 F.3d 360 (5th Cir. 2005).
18 U.S.C. § 922(g)(5)(A) makes it unlawful to possess a firearm while being an alien "illegally or unlawfully in the United States." The defendant was a Salvadoran who entered the US illegally. After his entry, El Salvador experienced earthquakes, and the Attorney General used his legal powers to allow Salvadorans to apply for "Temporary Protected Status," where they could remain in the US and seek employment, at least until the TPS was lifted. The defendant applied for and got that status, then found work as a security guard. During an investigation of use of illegals by private security firms, federal agents came across him while he was armed and on duty. He was convicted of illegally possessing the gun and sentenced to 18 months' imprisonment.
The Fifth Circuit found it quite difficult to determine Congressional intent in this situation (the law allowing TPS was enacted long after the Gun Control Act was, and neither statute had any useful legislative history. BATF had promulgated a regulation indicating that an illegal alien who later received TPS was still forbidden to own arms, but the court declined to give much deference to the regulation, noting that the degree of deference given an agency in the setting of a criminal prosecution is uncertain and the agency here had no particular expertise in immigraton law. Finally, it noted that the government itself in another appeal had conceded that ATF regulations were not entitled to deference.
In the end, the court held the situation sufficiently ambiguous to justify the application of the rule of lenity: if a statute can be construed with about equal validity in two different ways, the court should choose the more lenient construction; if Congress wanted the stricter one, it should say so without ambiguity. "After conscientiously applying our circuit's rules of statutory construction, we cannot say with certainty that Congress intended to criminalize the possession of firearms by aliens who have been granted temporary protected status. It may be sound policy, but as such its wisdom has no call upon the judicial power. When Congress does unambiguously render conduct illegal through appropriate legislation, it is not our task to offer supplementary and clarifying amendments."
Permalink · prohibitted persons · Comments (1)
Carnival of Cordite No. 18
The Carnival of Cordite No. 18 is posted. Among other events, the Revolutionary War Veterans' Association proposes to re-enact the Battle of Bunker Hill. Using modern rifles, against paper redcoats. Y' know, guys, that does seem just a bit one-sided....
Weekend relaxation...
For those who think you can't control a Thompson in full-auto, here's a 16 round burst. (I counted 16 cases in the air, might have missed a few). And my subgun is one of those early WWII variants that is out of milspec -- it fires at 900 rpm instead of the expected 600, but the military had to waive compliance because it needed the guns. Note that the cumulative recoil pushes me back a foot or two, but the muzzle stays level.
Continue reading "Weekend relaxation..."
Permalink · shooting · Comments (0)
Unusual uses for firearms, part one
They shoot horses, don't they?
Permalink · contemporary issues · Comments (0)
When beauticians attack
The Shreveport Times reports an interesting case of self defense.
An armed robber tried to knock over Blalock's Beauty College, threatening the owner and her pupils with a revolver. He grabbed the money and ran, whereupon the owner, Dianne Mitchell, tripped him and dove atop him, calling for her students to help. They grabbed whatever was handy and proceeded to, very literally, beat the p_ss out of him.
Continue reading "When beauticians attack"
Permalink · Self defense · Comments (0)
An interesting observation by Prof. Lund
I was reading Prof. Nelson Lund's piece, "Federalism and the Constitutional Right to Keep and Bear Arms," Publius 63 (Summer 2003): he observes that the 2nd Amendment is in a unique position vis-a-vis the 14th Amendment.
The Supreme Court early on held that the federal Bill of Rights did not bind State governments (and in fact the early State governments often penalized freedom of expression -- look at the Slave Codes -- and some had established churches for a time). Then came the 14th Amendment (1868) which forbade the States to deny the "privileges and immunities" of US citizenship, or to deprive citizens of life, liberty or property without "due process of law." Two different prohibitions.
The Supreme Court (as I note below) quickly eviscerated the "privileges and immunities" clause, but in the 20th century began binding States to follow specific Bill of Rights provisions by holding that laws restricting freedom of speech, jury trial in criminal cases, etc. involved deprivation of "due process of law."
Prof. Lund's observation is that the Court's only rulings on 2nd Amendment / 14th Amendment come in 19th century cases over "privileges and immunities." There simply is no Supreme Court ruling on whether a State deprivation of the right to arms denies "due process of law." This makes the 2nd Amendment quite unique. There are "due process" rulings on the other provisions of the Bill of Rights -- expressly holding that deprivation of jury trial in civil cases, and the right to grand jury indictment in criminal ones, do not deny "due process," and holding that deprivations of the remainder of the Bill of Rights does deny it. The 2nd Amendment stands alone in that the Supreme Court has never made a "due process" call one way or the other.
[Update] As the LegalEagle notes, the 3d Amendment (forbidding quartering of troops in private property) is a bit peculiar: it's generated little controversy, due to the invention of barracks.
Continue reading "An interesting observation by Prof. Lund"
Permalink · 14th Amendment · Comments (2)
Apologies ... from the wrong party
The Senate is expected today to pass a resolution of apology for not having passed federal anti-lynching legislation when it was most needed. Apologies certainly are in order, but Congress isn't the party which needs to make them. It's the Supreme Court which owes the apology.
In 1870, Congress passed the Enforcement Act, to enforce the 14th Amendment's mandate that no state violate the privileges and immunities of US citizenship. The Act made it illegal, inter alia, to "injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same..." The penalty was imprisonment for up to ten years.
In 1875, the Court ruled in U.S. v. Cruikshank that lynching a person (actually, a hundred people) did not deprive anyone of the privileges and immunities of national citizenship. (It's relevant to Second Amendment history in that the Court also ruled that disarming people and preventing their assembly were not violations of the 14th Amendment, either). Here's the language. Bear in mind that the Court was playing a word-game along these lines: (1) Privileges and immunities of State and of national citizenship must be different things (why?); (2) If a right existed beforethere was a national government, it must not be a P&I of national citizenship; therefore (3) the more fundamental, and the earlier a right can be seen as existing, the less likely it is to be a federal P&I protected by the 14th Amendment. Here's what the Court held as to the right to life:
"The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, 'of their respective several lives and liberty of person without due process of law.' This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself."
What makes Cruikshank particularly appalling was that it arose out of the worstracial violence in American history. Sheriff Cruikshank had been a leader of a mob that attacked a group of freedmen occupying a courthouse, burned the courthouse to force them out, disarmed them and murdered over a hundred of them. Here's an account by one of the mob: " the whites slaughtered many of the negroes as they rushed from the burning building, and many were ridden down in the open fields and shot without mercy. Those lying wounded on the court house square were pinned to the ground by bayonets. [About 48 were taken prisoner, and some of the mob were tasked with escorting them to jail.] .... When I got to the garden," continued Mr. Tanner, "I heard Luke Hadnot say, 'I can take five,' and five men stepped out. Luke lined them up and his old gun went off, and he killed all five of them with two shots. Then it was like popcorn in a skillet. They killed those forty-eight." Under the Supreme Court's ruling -- this was no violation of the 14th Amendment and could not be federally prosecuted.
Cruikshank has never, BTW, been overruled. The only way our Bill of Rights liberties (not to mention more fundamental rights such as that against being murdered by State functionaries) became applicable to the States was via the 14th Amendment's due process clause, which the Court only began vigorously to apply in the 1960s. So for virtually the entire period for which the Senate is apologizing, it would have done it no good to pass anti-lynching legislation, since Supreme Court caselaw had held that it exceeded Congressional powers.
Apologies are in order ... but they shouldn't come from the Capitol, but from a building across the street. I'm sure the All Writs Act would have something covering it.
Continue reading "Apologies ... from the wrong party"
Supremes Act on US v. Stewart
US v. Stewart is an appeal from a 9th Circuit panel ruling, reversing a conviction under 18 USC 922(o) for having possessed a homemade full auto weapon. The panel (led by the pro-gun and libertarian-leaning Judge Kozinksi) reversed based on the Commerce Clause -- there was nothing commercial about the defendant's making the arm and keeping it in his home. (You can get the pdf file via the link on this page.
The Supremes (as I'd expected) remanded for reconsideration in light of their recent medicinal pot case.
There are similarities and distinctions between the two cases. On the one hand, given that the medicinal pot case says you must consider the entire of the economic activity and not just the defendant's actions, or what was legal activity, it undercuts the original Stewart rationale. It'd be a safe bet that there is enough illegal commerce in full auto to pass any likely commerce test.
On the other hand, Stewart does resemble Lopez in that it involves a non-economic possessory activity (indeed, it could be a bit stronger than Lopez in that here the gun involved had not even travelled in commerce). Although -- if we are to look at an entire "industry" rather a segment of it -- possession of a gun within 1000 ft. of a school can hardly spawn an industry, whereas making machineguns could.
Further thought: what role would Congressional determinations play? In the medicinal pot case, Congress had expressly found, in preambles to the drug laws, that there was interstate commerce and impacts upon interstate commerce. In the case of 922(o), it was an amendment, hastily added with almost no debate and zip mention of interstate commerce. Congress just voted to ban new MGs because it sounded like a good idea at the time.
Still another thought: how does the fact play in that, if there were no 922(o), all MGs would still have to be registered under the NFA? Plus the fact that registered MGs have been involved in no or virtually no crime, and thus don't affect commerce negatively? (I think around the time of this amendment, ATF was asked whether there was any evidence of a registered NFA device having ever been used in crime, and it responded no -- back in the mid 1970s, I did have one dealer tell me that he had once heard of a criminal use of a registered NFA, but that was the only case. So depending upon which is correct, the answer is one or zero, in seventy years of the statutory scheme). Here's a link to an ATF statement (pdf, 4 megs) that that registered NFAs are rarely used in crime.
Continue reading "Supremes Act on US v. Stewart"
Permalink · contemporary issues · Comments (3)
Wash Po having trouble keeping it straight again
Last week, the WaPo was editorializing against the gun mfr's liability bill:
"The measure's extreme nature was highlighted last week when Rep. Chris Van Hollen
(D-Md.) offered an amendment in committee to clarify as exempt from protection the situation in which "the seller knows that the name of the [gun buyer] appears" on the government's gang and terrorist watch list "and the person subsequently used the [gun] in the commission of a crime." Judiciary Committee Republicans voted the amendment down ... [claiming it was vague or redundant]"
This week the WaPo runs a major story on terrorism matters, answering the Bush Admin. claims to have made 400 terrorism arrests (not just watch list, arrests) with an argument that nearly nine-tenths of the defendants did not even have an allegation of a link to a terrorist group. It adds, with regard the watch list, that " large number of people appear to have been swept into U.S. counterterrorism investigations by chance -- through anonymous tips, suspicious circumstances or bad luck -- and have remained classified as terrorism defendants years after being cleared of connections to extremist groups." It quotes an official as saying "A person could not have been put on this list if there was not a concern about national security, at least initially," he said. "Are all these people an ongoing threat presently? Arguably not."
Permalink · contemporary issues · Comments (0)
Joyce Foundation at it again
Editor and Publisher reports that newspapers in Iowa, Ohio and Nebraska (total circulation 5.8 million) have stopped running classified ads for guns, after all the newspapers in those states were petitioned to do so by "Iowans for the Prevention of Gun Violence." Iowans Against Gun Violence nows plans to expand its drive to all fifty states.
The Joyce connection? Joyce has for years been bankrolling Iowans Against Gun Violence and its drive to end classified ads. Here's the Joyce Foundation page on the project -- click on "Closing the newspaper loophole."
Joyce grantee, Iowans for the Prevention of Gun Violence (IPGV), has formed a coalition of state gun violence prevention advocates that are working to close the “newspaper loophole.” As part of their efforts, IPGV mailed letters last summer to 20 major newspapers across the country, asking them to stop accepting classified ads for guns. This initial request prompted the Chicago Tribune and the Philadelphia Inquirer to stop running gun ads. Follow-up letters convinced five metropolitan papers, including the Miami Herald, to change their gun ad policies.
Still more interesting according to its webpage, : Joyce pumped the "grassroots" Iowa group $250,000 in 2002 and the same sum in 2004. A check of IAGV's IRS reports, on guidestar.com, shows it reporting 2002 total contributions as $58,089 (a deficit) and 2003 (the latest) as $152,235. I assume the discrepancy is that the Joyce grants were spread over two years. In that event, however, it would appear that the "grassroots" group's entire contribution income and budget consists of the Joyce money. It is indeed a surrogate for the Foundation.
It appears to be one of many groups which are essentially Joyce Foundation surrogates (example: the Violence Policy Center, which got a million dollars in 2000, $800,000 in 2002, and $500,000 in 2003 and 2004).
My earlier posting on Joyce Foundation buying law reviews. Permalink · contemporary issues · Comments (0)
Self Defense and Employee Firings
Via the Volokh Conspiracy:
The West Virginia Supreme Court just dealt with the scenario where a store employee defends against robbery, and promptly finds themselves fired. (As has happened more than once!) The employee had not used their own firearm, but had jumped and disarmed the robber, and used the robber's gun to them until police arrived.
The court noted that this was an "at will" employee, and thus could normally be fired for any reason or no reason at all, but that there was a narrow exception for firings that were contrary to strong public policies. It then reviews caselaw affirming self-defense as a right, and concludes that that a firing based on exercise of the right runs contrary to public policy.
Continue reading "Self Defense and Employee Firings"
Permalink · Self defense · Comments (2)
An interesting read
Robert F. Williams, "Negroes With Guns" (1962, reprinted 1998)
Williams was a local civil rights leader during the desperate and dangerous times of the early 60's. At one point the tiny NAACP chapter to which he belonged proposed to disband. He objected, so the others elected him president and then all but one resigned, leaving Williams head of a one-man chapter. A veteran himself, he focused on recruiting other black vets and soon rebuilt the chapter.
When the Klan came shooting, it soon found that its targets shot back. A Klan cavalcade (sort of a mass drive-by shooting) came to shoot up the home of the vice-president of the chapter, and found a number of members in sandbagged positions with rifles. After a gunfight, the Klan abandoned that approach (and the City Council, which had never done so before, required the Klan to get a permit for future appearances -- this was in 1957, remember). The book has pics of his group with their arms, of headlines ("CITIZENS FIRE BACK AT KLAN"). It's also worthwhile as a reminder of just how bad things really were back then -- a 7 year old sent to a reformatory for 12 years because a white girl had kissed him on the cheek, people murdered and raped with complete legal impunity, Williams himself forced to flee the country by a false kidnapping charge, government officials alternately trying to bribe him and threatening to murder him, etc. Anyway, here's a brief passage that is very interesting:
"Luther Hodges ... was the governor of South Carolina at the time. We appealed to him. He took sides with the Klan.... Then we appealed to President Eisenhower but we never received a reply to our telegrams. There was no response at all from Washington.
So we started arming ourselves. I wrote to the National Rifle Association in Washington which encourages veterans to keep in shape to defend their native land and asked for a chapter, which I got. In a year we had sixty members. We had bought some guns, too, in stores, and later a church in the North raised money for us and we got better rifles. The Klan discovered we were arming and guarding our community. In the summer of 1957 they made one big attempt to stop us. An armed motorcade attacked Dr. Perry's house, which is situated on the outskirts of the colored community. We shot it out with the Klan and repelled their attack and the Klan didn't have any more stomach for this type of fight. They stopped raiding our community."
BTW, (1)that's by no means the only time Williams and his friends had to use firearms to defend themselves, and (2) there was no sense calling the police, since two police cars were in the Klan cavalcade!
The intro and forward go into the debates between Williams and Martin Luther King over self-defense in the late 1950s. They suggest that King's position actually agreed with Williams (self-defense was necessary to prevent terror from destroying the civil rights movement, was moral, and it was necessary to self-respect), and that he rather created a straw man by implying that Williams wanted to use force offensively (based on a slip of the tongue, when Williams was speaking angrily of a case where a white who had raped a black woman in front of many witnesses was still acquitted).
Permalink · 14th Amendment · Comments (1)
Genocide and arms
Over at davelkopel.com, Dave has posted an interesting paper by himself, Paul Gallant, & Joanne D. Eisen. The title, "Is Resisting Genocide A Human Right?" sums up the subject matter.The paper is 47 singlespaced pages long, exploring genocide, arms and arms control, and treaties on the subject, and concludes:
In this Article, we have shown that, under existing international law, genocide victims are not obliged to wait for foreign governments or world organizations to rescue them. According to normative principles of international law and according to positive international law, genocide victims have a fundamental human right to use armed force to resist genocide. Because the prohibition of genocide is a preemptory jus cogens norm of international law, any local, national, or international laws or government actions which interfere with self-defense by genocide victims are necessarily unlawful. In particular, arms control laws which may be generally valid may not be enforced against genocide victims or against persons who supply arms to genocide victims; enforcement would make the enforcing court or other state agency complicit in genocide.Accordingly, the Security Council 2005 arms embargo on Sudan may not lawfully be enforced so as to deny defensive arms to the genocide victims in Darfur. The new UN Protocol against firearms trafficking and manufacturing is equally inapplicable to arms acquisition by genocide victims, including the Darfur victims.
All future international small arms control treaties should explicitly recognize that the treaty does not (and, as a matter of existing international law, can not) apply so as to prevent genocide victims from acquiring and using defensive arms. Any interference—including interference under color of law—with the selfdefense rights of genocide victims constitutes a grave violation of the most fundamental of all international and moral laws.
Permalink · contemporary issues · Comments (0)
Am I the only one to see the incongruity here?
The Sacramento Bee reports that (in the wake of the California Dep't of Justice backing some rather lamebrained ideas for putting serial numbers on cartridges), the Folsom Shooting Club refused to let on-duty DOJ officers shoot on its range, and "We're not questioning their right to do this, but who's next?" said Peter Hamm, a spokesman for the Brady Campaign to Prevent Gun Violence."
The Brady Campaign, complaining about lack of shooting opportunities? Isn't that a bit like the Womens' Christian Temperance Union hosting a kegger?
Permalink · contemporary issues · Comments (2)
Tightening British gun laws?
The Scotsman reports that some Scottish officials are calling for their parliament to be given power to enact additional gun laws (beyond those applicable to Great Britain generally).
The reason? They're upset that the British Parliament is moving to restrict replica firearms but hasn't taken a tough stand on ... those dangerous airguns.
Mr McConnell had been lobbying the Home Office in an attempt to get a licensing system for air weapons, or at least a permit system for the most dangerous types.But the government's new restrictions, unveiled by Hazel Blears, the Home Office minister, concentrate largely on imitation weapons, which have hardly been a problem in Scotland.
The decision only to raise the age of legal purchase on airguns and to tighten the law on where they can be used did not go nearly as far as the First Minister had hoped.
Mr MacAskill said: "Little is being done to address the number of airguns on Scottish streets. Raising the age for purchasing airguns from 17 to 18 is a token gesture that will not properly address this serious issue. The Scottish Parliament must take control over firearm legislation."
Permalink · non-US · Comments (0)
Michael Moore book gets a few plugs from the Left
Via Clive Davis' blog... a couple of postings on his interview of Jesse Larner's new book, "Moore and Us." first post and second. His page has a link for UK Amazon orders; I can't find it on Amazon US yet.
Permalink · Personal · Comments (3)
Gonzales v. Raich: Supreme Court rules on Commerce Clause
The Supreme Court ruled today in Gonzales v. Raich, against taking a somewhat narrower (and to my mind, entirely proper) view of the Commerce Clause. The vote was 6-3, holding that it was permissible for federal drug regulations to override California's state law allowing medicinal marihuana, even as applied to patients who grew and consumed their own pot.
UPDATE: Prof. Orin Kerr, at the Volokh Conspiracy, weighs in with an interesting insight. Look upon the Court as nine individuals. Four essentially believe that the Court should stay out of federalism-type issues and believe in a "sky is the limit" reading of the Commerce Clause.
Now, that should mean they lose 5-4 every time. But the other five are somewhat divided. Rehnquist is willing to narrow the commerce clause. O'Connor is focused upon protecting the role of the State (thus likely to vote against a federal statute when it encroaches upon traditional State powers, as opposed to opposing it purely because it seems to exceed federal power). Scalia centers upon textualism (which often, but not always, means a narrow commerce power), Thomas on originalism (which equates to a narrow view of the commerce power). Kennedy, so often the swing vote, is like O'Connor interested in protecting the states, and like Rehnquist in preventing excessive federal power, but is not so sensitive as either of the others.
So in this case the theoretical majority loses Kennedy, who isn't quite willing to go that far, and Scalia, who concurs, mostly in criticism of the dissent. (This might reinforce yet another human aspect of the Court: reportedly Scalia and O'Connor, who wrote the dissent, do not get along at all and rarely join in opinions -- even when they agree, one or the other will write a concurring opinion).
UPDATE This brings to mind a bit of a paradox. The Lopez case referred to the fact that the Gun Free Schoolzones Act only affected small areas (1000' around each school), and lower courts seized upon that to distinguish other laws regulating simple possession of firearms, finding that they did fit under the Commerce power. But isn't that rather like saying that "Congress doesn't have enough power to regulate narrow sets of activities, but does have enough to regulate broad sets of the same activities"? How can an entity have too little power for a small undertaking, yet sufficient power for a larger one?
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Permalink · Commerce Clause · Comments (2)
Wash Po on bill ending mfr lawsuits
The Washington Post (free subscription req'd) has its predictable editorial opposing the Lawful Commerce in Firearms Act.
I'd expected the usual tirade about gun nuts and mass murder ... but instead the Post is unusually cautious. How about:
The rash of lawsuits against the firearms industry is troubling. Guns are legal products, and it's usually not due to any product defect that they kill people. Many lawsuits against the industry are obvious attempts to use litigation to achieve policy changes that gun control proponents are unable to garner legislatively. We favor many of those policy changes, but litigation is not the answer to America's problem with guns.
Now, it does go on to "But not all of the gun lawsuits are frivolous or deserve to be thrown out without examination," but this is hardly traditional Post ranting. (To cite an example of a valid suit, it asks what of a dealer who knowingly sells a hundred guns to straw purchasers, so they can sell them to criminals. Well, the bill specifically allows suits where the dealer or manufacturer knowingly violated the law, and even one knowing straw sale would meet that requirement, let alone a hundred).
All in all, a pretty tame effort by the Post.
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Another gun manufacturer lawsuit bites the dust
Via David Kopel, at the Volokh Conspiracy--the Florida Court of Appeals has shot down Grunow v. Valour Corporation.
Facts: a student took a gun from his grandfather (who had inherited it, from a lawful purchaser) and murdered a teacher. Eleven years had passed between the original, legal, sale, and the homicide. The manufacturer had since gone out of business, so the plaintiff sued the distributor. After a ten week trial (how any civil PI trial could last ten weeks is beyond me) the jury found the wholesaler liable on a theory that it had not transferred the gun with "feasible safety measures." It held the wholesaler liable for 5% of the loss.
The Court of Appeals, citing earlier caselaw, held the distributor not liable. " We certainly sympathize with Grunow and recognize the tragedy of the events that transpired. However, it was Brazill, his grandfather, and perhaps the school that were liable, not Valor. "
Permalink · Gun manufacturer liability · Comments (0)
Practice tip on NFA cases
I just remembered an interesting practice tip, give to me by Jim Jeffries. The general federal statute of limitations is five years. However, the NFA is part of the tax codes, and has a three year statute of limitations (with some exceptions for willful failure to pay, filing of false documents, etc). See 26 USC §6531.
Permalink · National Firearms Act · Comments (0)
Brady Campaign Shows True Colors
Let's see... Brady Campaign is supposedly concerned about gun safety, and argues that gun locks are a great idea toward that end....
So Pennsylvania gets a federal grant, buys 610,000 gun locks, creates Operation ChildSafe, and offers them to its residents for free.
Brady's reaction? According to the Pittsburg Post-Gazette, " Eric Howard, a spokesman for the Brady Campaign to Prevent Gun Violence, said the burden should not be on government grants and taxpayers to promote gun safety."
Permalink · contemporary issues · Comments (0)
Army's novel idea: give them guns early!
The Army has a novel idea--make recruits familiar with guns from the start, thereby reducing accidental discharges and increasing skill.