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August 2005
Funny result of a gun "buyback"
From the Miami Herald:
World War II vet gets back rare Japanese rifle he sold for $75
WEST PALM BEACH, Fla. - Days after World War II ended, American sailor Bruno Filippelli walked into a Tokyo shop and bought a Japanese army rifle and a saber for two packs of Chesterfield cigarettes.
Filippelli brought the gun home, where six decades later it was collecting dust in a closet. So last weekend, when the West Palm Beach police offered $75 Target gift cards to anyone who turned in a gun, Filippelli took it to the collection site.
That was almost a bad move.
An officer from another police department who is a gun collector saw a photo of the Arisaka Type 99 pressure test rifle in The Palm Beach Post and Filippelli soon learned the gun is a rarity worth thousands. He asked for it back, but the police originally said no. They planned to melt it down with
the other 450 firearms collected or give it to a museum.
[Story goes on to note that, after a lot of publicity, police finally gave the gun back] Fewer than 100 of the rifles were ever produced and maybe 50 are left, including about 20 in the United States, according to gun experts and dealers. The type of rifle was never used in the field. It was designed to
test the chamber pressure and bullet velocity for the Type 99 rifle, which Imperial Japanese forces widely used throughout World War II. .....
Continue reading "Funny result of a gun "buyback""
Permalink · contemporary issues · Comments (1)
Dicta from a recent Washington case
Via Gene Volokh--some language in a recent concurring opinion. The defendant was stopped for driving without a license. Police found with drugs in his truck, and a firearm in a case behind the seat where it was quite difficult to get to. The question was whether an 18 month sentence enhancement for committing an offense "while armed" applied.
The conclusion was no, with the majority applying a test where "armed" means either a firearm is readily accessible, or else it bore some nexus or connection with the offense, and citing strings of cases determining whether a firearm was or was not sufficiently accessible, and whether the required nexus had or had not been proven.
Judger Sander's concurring opinion argued the test was too ambiguous, and cited a constitutional issue:
And should constitutional rights turn on these minute distinctions?
'{A}y, there's the rub.' In Schelin, four judges stated that '{r}equiring
a nexus between the defendant, the crime, and the weapon protects against
violation of the right to bear arms.' Schelin, 147 Wn.2d at 575 (opinion
of Ireland, J.). But this was a mere plurality. I stated that allowing the
imposition of a firearms sentence enhancement for other than use of the
'firearm to aid the commission of the crime charged' violated the state
constitution. Id. at 595 (opinion of Sanders, J.).
This court has not yet resolved whether the state constitution requires
more than a nebulous 'nexus' to infringe on the specific constitutional
right to keep and bear arms. Allowing innumerable factual distinctions
that make no difference to control the exercise of a constitutional right
that is absolute within its scope, leaves our citizenry blowing in the
proverbial wind, unable to discern whether their constitutionally protected
acts will be recognized by the courts.
Permalink · contemporary issues · Comments (0)
Joyce Malcolm's article on arms and genocide
[Via Don Kates] Prof. Joyce Malcom has a fine article on genocide and the criminology of firearms, in the MIT journal "Breakthrough." Here's the link. (pdf file)
Don also reports that Dave Kopel and Drs. Gallant and Eisen have an article entitled "Does
the Right to Arms Impede or Promote Economic Development" in v. 6, issue 1 of ENGAGE: The Journal of the Federalist Society's Practice Groups. Don't have an online cite for that one.
Permalink · arms vs. genocide · Comments (0)
Changes to Texas law on firearms
Just rec'd an email on this, haven't verified online yet. As I recollect, Texas had a rather strange legal regime until recently. Possession and ownership were OK, but it was illegal to "habitually carry" a handgun. Exactly what was "habitual" was up to the courts, but it presumably did not mean carrying for a specific shooting trip, and did mean carrying all the time for self-defense. Anyway:
HB 322,
Categories: Concealed carry. Status: Filed 01/06/05. Signed 6/17/05,
effective September 1, 2005.
Relating to concealed handgun licenses for members and veterans of
the United States armed forces.
Extends eligibility for a CHL to members or veterans of the United
States armed forces age 18 or older, including a member or veteran of
the reserves or national guard. Provides an extension of the license
for one year to members or veterans serving outside the US. Cuts
license fees in half for service members or veterans.
HB 823, Categories: Concealed carry. Status: Filed 02/03/05. Signed
6/16/05, effective September 1, 2005.
Relating to an exception to the application of the offense of
unlawful carrying of weapons.
Legalizes carrying a handgun for self-defense without a CHL while
travelling in a privately owned motor vehicle. This is an expansion
of rights, but it may result in a drop in the number of concealed
handgun licensees as those who want to carry only in their car drop
out. As amended, the law requires the handgun be concealed.
Permalink · contemporary issues · Comments (5)
Prof. Kleck's latest studies on self-defense
I only have the abstract, and apparently like many scholarly journals it runs behind (i.e., the 2004 issues sometimes appear in 2005). Prof. Kleck talked about this when I filmed him a few months ago.
Criminology, Nov 2004 v42 i4 p861(49)
Resisting crime: the effects of victim action on the outcomes of crimes. Jongyeon Tark; Gary Kleck.
Author's Abstract: COPYRIGHT 2004 American Society of Criminology
This study assessed the impact of sixteen types of victim self protection (SP) actions on three types of outcomes of criminal incidents: first, whether the incident resulted in property loss, second, whether it resulted in injury to the victim, and, third, whether it resulted in serious injury. Data on 27,595 personal contact crime incidents recorded in the National Crime Victimization Survey for the 1992 to 2001 decade were used to estimate multivariate models of crime outcomes with logistic regression. Results indicated that self-protection in general, both forceful and non forceful, reduced the likelihood of property loss and injury, compared to nonresistance. A variety of mostly forceful tactics, including resistance with a gun, appeared to have the strongest effects in reducing the risk of injury, though some of the findings were unstable due to the small numbers of sample cases. The appearance, in past research, of resistance contributing to injury was found to be largely attributable to confusion concerning the sequence of SP actions and injury. In crimes where both occurred, injury followed SP in only 10 percent of the incidents. Combined with the fact that injuries following resistance are almost always relatively minor, victim resistance appears to be generally a wise course of action.
Permalink · Self defense · Comments (1)
Light blogging
Have been light on blogging yesterday and today because I was editing the beginning of the Second Amendment documentary film. Yes, I'll have a few clips online as soon as I've got them polished a bit!
Canadian experience
An article in National Review Online regarding the Canadian experience with gun control...
Permalink · non-US · Comments (1)
Off-topic, but
I majored in Speech, and read one 18th century one the was considered the most searing invective since Cicero lit into Cataline. Well, there's a new titleholder. This makes Cicero's excoriation look like a love note. It's a wonder my monitor didn't burst into flames. You want to know how verbally to tear a person into shreds without using a four-letter word, this is it.
And I'd judge the recipient deserved every word of it....
UPDATE: link was off, now it's fixed.
Richmond Gun Show issue update
Here's an update on the Richmond gun show affair. The agencies involved appear to be claiming they were checking out purchasers to make sure the ID was real and they were in-state residents. However, the reported questions went considerably beyond "Does someone by this name live here?"
It'd be interesting to see the results, since I suspect every ID that was checked checked out OK.
UPDATE: The owner of the gunshow has posted pictures of the event!
Here's a CNS reporter G. Gordon Liddy Show (streaming and big audio mpg file). He describes multiple squad cars with lights in parking lot, about 50 more LE vehicles near show, one exhibitor counted 72 officers, 30+ ATFE agents inside, walking the floor and watching with binocs from above. VA gunshows have a room set aside for state police to run the background checks. They'd take each 4473 and send local officers to the address indicated, asking anyone there not only if the person lived there, but did you know he's at a gun show, how often does he go, how many guns does he buy, etc. Owner of gunshow upset because attendance was quite low, she figures people saw all the squadcars outside and figured this wasn't going to be much fun.
Then G. Gordon interviews James Lalime, who brought a gun to the show to sell (he wasn't an exhibitor). He says an ATFE agent took him aside, accused him of buying and selling as a business (if you "engage in the business" of "dealing" without a license, it's a felony).
Permalink · contemporary issues · Comments (1)
Some serious horse_____
The Lansing State Journal reports on a domestic case, where the parents had joint custody, the father got called up for duty in Iraq (agreeing to the mother's custody while he was out of country), and the court referee (somebody brought in to make a recommendation to the court so as to ease its difficult 9-4 with a long lunch workload) recommended that his joint custody be ended even after his return.
"Erb's lawyer, Theresa Sheets of Lansing, said Erb wanted full custody because she no longer found McNeilly to be a fit father."This has absolutely nothing to do with his military service," Sheets said.
"It has everything to do with his behavior as a parent."
Sheets pointed to the court referee's report that made the case against McNeilly.
The report says that McNeilly treats his son more like a friend than a son, and "sees the child as a counterpart in his military adventures."
It also questions some of McNeilly's correspondence to his son while on active duty.
McNeilly said one postcard showed a soldier holding a gun. Another showed a soldier spearing a tire as if it was an enemy.
The court report says McNeilly also told his son how to kill people in multiple ways, and that he wrote his son "the next time someone touches you and leaves bruises on you - I'll be ready."
McNeilly said the statements were taken out of context. And he believes the postcards were appropriate for a then-8-year-old boy.
But Sheets said the correspondence crossed the line.
"My client is making sure to turn off the TV when the news reports deaths in Iraq and (McNeilly) was engaging in behaviors that brought fear," Sheets said.
Translation: he wants to treat his son as a buddy, a young man, not as a widdle boy, and to share his life with him.
The one comforting thing is that in eight years the [profanity deleted] mother will lose her control, and the son will be able to resume a normal life, whether she has temporary control or not.
Permalink · contemporary issues · Comments (0)
California case on self defense against dogs
Via Don Kates and Paxton Quigley--
On August 16, the California Court of Appeals handed down People v. Lee, No. B175291.
Facts: Defendant, a retired deputy, was walking her dog when two other dogs approached and refused to pull back when she shouted at them to go away. She testified that she had been attacked by dogs three times in the past in the area and was afraid they were attacking. She fired a shot at them which hit a parked car. [This case is NOT a lesson in good gun handling -- and it certainly sounds like LA County Sheriff's Dept could use a lot more training in safe use of firearms]. Witnesses to the incident (most of whom were at a distance of 50-60 yds, and disagreed quite significantly on how close the dogs were to her) said they didn't think the dogs were preparing to attack. She was tried and convicted on charges of discharging a firearm with gross negligence.
The trial court refused to give a jury instruction on self defense. The prosecution argued that the California law on self-defense only pertained to defense against humans, and that when animals attacked the only defense was necessity (which is considerably narrower than self-defense, and puts the burden of proof on the defense). Apparently the uniform California jury instructions on self-defense refer to defense against a "person."
The Ct of Appeals reverses and concludes
The focus is on the nature of the threat, rather than its source. It serves no public policy, and is neither logical nor fair, to deprive appellant of the defense of self-defense because the threat of imminent harm came from a dog and not from a person. The use of force in defense of oneself should be legitimate, whether or not the source of the threat is a human being. In other words, the use of force in self-defense should not be illegitimate because the source of the threat is not a human being.
The opinion also has an interesting survey of cases on self-defense against animals.
Permalink · Self defense · Comments (4)
Leonard Levy's "Origins of the Bill of Rights"
Just got Leonard Levy's "Origins of the Bill of Rights." (He's the late, great legal historian who some years ago won the Pulitzer for his history of the 5th Amendment). Levy devotes an entire chapter to the Second Amendment, arguing that it's an individual right. He says that the claim that Miller v. US ruled for a collective right "misleads." He rejects claims that "bear arms" (as opposed to "keep") relates only to military use, pointing out that the Pennsylvania minority's demand for a bill of rights used "bear arms" to describe use in self-defense and even hunting, and that PA at the point in time was the only State without a militia organization (the large Quaker population and its passifism accounting for that).
A WII vet himself, Levy added that "If all that was meant was the right to be a soldier or to serve in the military, whether in the militia or in the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The 'right' to be a soldier does not make much sense."
More thoughts, on the interface of Levy and Amar.....
Continue reading "Leonard Levy's "Origins of the Bill of Rights""
Permalink · Academic treatment · Comments (1)
Colin Greenwood on international comparisons
Colin Greenwood (a British law enforcement officer who, back in 1972 authored "Firearms Control," a critical study of the British gun laws) has submitted a paper to Parliament's Select Committee on Northern Ireland on the matter. Among his notes:
"8. In 1991, Professor Brandon Centrewall studied handgun availability and homicide in the jurisdictions on each side of the US/Canada border where demographic differences could be factored out. He found that, though restrictions were few in the US States and the number of legally held handguns exceeded those on the Canadian side by a factor of 10, rates of homicide were virtually identical ((1991) American Journal of Epidemiology V134 pp 1245-65).
9. As an example of a study so broadly based as to compensate to some extent for an inability to factor out demographic and other differences, the Economic and Social Council of the United Nations published a survey (E/CN.15/1997/4 dated 7 March 1997) of 33 countries. If broad band analyses are conducted, this survey shows that there is no correlation between rates of gun ownership and crime, accidents or suicides.
THE UNITED STATES OF AMERICA
10. Any debate about cross sectional analyses is clouded by reference to the United States where it is said that guns are subject to no controls and crime rates are consequently many times those of the United Kingdom. In fact there are some 20,000 statutes concerning gun ownership at Federal, State and local levels. They vary from a virtual ban on gun ownership in many areas, including Washington DC, to a very lax regime in States like Vermont. Within the United States, there is no correlation between the strictness of the gun control system and rates of armed crime. Washington DC has a homicide rate of about 80 per hundred thousand despite its harsh system of regulating firearms. Vermont with little control has a homicide rate lower than that in England and Wales.
11. When crime in the United States is compared with that in England and Wales the generally accepted picture is proved to be entirely false. A study by Dr Patrick Langan of the US Department of Justice and Dr David Farrington of Cambridge University published in 1998 showed that in both recorded crime and crime victim surveys, England and Wales has higher rates of robbery, assault, burglary and motor vehicle thefts. These figures do not take account of differences in recording systems mentioned earlier. The following table shows figure per 1,000 population [omitted]
* Other studies (British Crime Surveys 1982, 1984, 1988 and 1992) showed that 43 per cent of burglaries in England and Wales were committed on occupied houses. A similar rate has been found in Holland. In the US only 9 per cent of burglaries were of occupied houses (Kleck G, Targeting Guns 1997 Aldine de Gruyter, New York).
12. Whilst the United States has a much higher homicide rate than England and Wales, the gap seems to be closing. In 1980, the US had an unadjusted homicide rate of 10.5 per hundred thousand population but in 1998 that had dropped to 6.26. England and Wales had an adjusted homicide rate of 1.1 per hundred thousand in 1980, rising to 1.43 in 1998 and to 1.55 in 2000. Thus in 1980, the US had a homicide rate almost 10 times that of England and Wales. By 1998, the differential was down to 4.4. Home Office adjustments reduce the recorded homicide figure by at least 12 per cent so that change is even more marked."
Permalink · non-US · Comments (0)
Joyce Foundation in Ohio
I've written on the Joyce Foundation before, here and here and here not to mention here. Essentially, it's a $653 million private foundation that has been ladling out big bucks on the antigun side, bankrolling fake "grassroots" groups, paying law reviews to run anti-second-amendment issues, etc..
Chad Baus of the Buckeye Firearms Association did a thorough investigation of Joyce's functioning in Ohio, and posted a long article on the BFA webpage. Among other things, Joyce is extensively bankrolling "Ohio Coalition Against Gun Violence," to the tune of $632,000 over a few years. In addition, it's bankrolling other supposed grassroots groups operated by the same people, to the tune of several hundred thousand more. It appears that these "grassroots" groups have, at best, a tiny handful of members, but they generate press coverage as if they were bona-fide local organizations. The one clear result, the report suggests, is that the handful (it looks like one or two) people running the groups are making a pretty good income off it.
Permalink · contemporary issues · Comments (0)
Air America
Not very on-topic, but.... Prof. Bainbridge has an interesting post on the legal woes of Air America, with an attached complaint filed to start a lawsuit against them, by a station on which they leased time.
Their arrangments sound, well, quite sleazy. VERY sleazy. As Michelle Malkin has documented, when they started going down the tubes they were propped up by a big loan from a nonprofit (for which one of their officers was also an officer) that diverted about half its cash on hand from its charitable purposes into financing the radio show.
In this latest affair, the plaintiff radio station has been stiffed for about a quarter million. Air America responded with nasty personal attacks on the station's president (including posting his phone no. on their website), sued the station (getting a temporary restraining order forcing it to keep broadcasting, unpaid -- which was set aside once it got to a hearing, with the court awarding damages to the station instead). The judge as much as said Air America's suit was a fraud on the court ... found it entirely frivolous, that Air America had falsely claimed it had been paying its bills and the banks had fouled them up, etc.
Then, to try to escape the debt and judgment, Air America's investors created a new company, shifted all of Air America's assets to it and tried to run the network from there. The station is now suing for the right to enforce its judgment against the new company.
Akhil Amar's book "The Bill of Rights"
Just spent many hours in the air perusing Prof. Amar's book.... it is, as one expects from his work, quite deep and with many original insights. Just a few--
On the 14th Amendment, he concludes that the intent was to make the federal Bill of Rights mostly applicable to the States through the privileges and immunities clause. The historical evidence for this was extensively compiled by Prof. Michael Kent Curtis in his book "No State Shall Abridge," and Amar adds convincing rebuttals to the responses made to Curtis and other advocates of P&I incorporation.
Then Amar suggests that total incorporation, of the type advocated by Justice Black (all provisions of the first 8 amendments apply to the States) may be too mechanical. (To back up a bit, the Framers of the 14th repeatedly said that the Bill of Rights wasn't all of the "privileges and immunities" of US citizens. Among other things, there were the protections in the Constitution itself, such as the restrictions on suspension of habeas corpus, ban on bills of attainder, etc. that are lumped in with other restrictions on the power of Congress such as no direct taxes).
He suggests that restrictions on the federal government were of two classes. First, recognitions of rights, of natural rights. Second, limits on Federal power (which I'd phrase as limits meant to restrict the new government alone -- not seen as universal rights, to be observed in any free government, but as safeguards appropriate to this new and risky establishment). The limitations on direct taxation clearly fall here. Perhaps the right to jury trial in civil cases (it's hard to see why a universal right would only kick in if the controversy exceeded $20). Grand jury -- probably a toss-up.
I promised some controversy... Amar shows that the right to arms was clearly meant as a recognition of a universal right, and should be applicable to the states. He also suggests that the first amendment provision forbidding Congress to pass any law "respecting an establishment" of religion might better be classed in the second category, as a restriction unique to the federal government. After all, several states had established churches at the time of the framing (some of which lasted into the 1820s), and by forbidding Congress to make any law "respecting" an establishment, the First Amendment also forbade Congress to interfere with State established churches.
Permalink · contemporary issues · Comments (0)
Comments
Comments are functional again. I was getting hit by a load of that blasted comment spam, and I think the ISP disabled commenting until it passed. If it returns (and I've got a couple of programs running to intercept it) I may have to disable it again for a few days at points in the future, now that I know how it is done.
Modern dispute over Nat'l Guard
(Via Legal Eagle) The Boston Globe is reporting a brewing conflict over the National Guard. As part of the next round of military base closings, the Pentagon proposes to relocate several NG air units to bases outside their own States. PA, Ill. and other States have sued or are preparing to do so, and the US is of course defending against it. The State's arguments appear to be based on the position that, if the NG is part (at least part) of their militia, they ought at minimum to be asked before it is moved to a different state.
The Federal position here underscores the point I've made before -- the NG is definitely not the functional equivalent of the Framers' "Militia." The functional attributes of that (the attributes which the Framers cited as the reasons for the institution) were that (a) it was composed of all the people, or at least almost all, and (b) it was primarily governed by State officials, not Federal ones.
Permalink · militia · Comments (3)
ATFE activities in Virginia
Virginia Citizens Defense League has an interesting report on ATFE gunshow activities in their area. (On their page, click on VA-Alert Archive to get to it). If correct, this would raise major problems as to violation of the Privacy Act, 5 USC 552a (remedies for which include a minimum damage award plus attorneys' fees), not to mention the restrictions on use of data from background checks:
"The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), who
seem to go out of their way to alienate gun owners with their
heavy-handedness, behaved in a shameful manner this last weekend at
the Showmasters' gun show in Richmond.
I had reports from members of police going to their houses while the
member was waiting for their approval to purchase a gun at the show!
The police asked the spouse and other family members questions about
the purchases and filled in a survey! "Did you know your husband was
going to a gun show today?" "Did you know your husband was going to
buy a gun today?" and many other such questions.
If no one was home at the gun purchaser's house, the police went to
the neighbors! "Did you know that your neighbor was buying a gun
today? How do you feel about him doing so?"
One member, who was carrying a personal gun to sell, was approached
by BATFE and taken to a car while they checked him out. The officer
said in front of Showmasters' management, "Did you know you need a
business license to sell a gun at this show? I have seen you at a
lot of shows - are you in the business of selling guns? I think you
are." That's called a fishing expedition and intimidation. In the
end they let the VCDL member go because their fish hooks came up
empty.
They had over 17 BATFE agents at that show. Richmond and Henrico had
a large number of officers running to the homes of anyone purchasing
a handgun to ask questions.
I guess Mayor Wilder is flush with cash all of a sudden. Too bad he
didn't use that money to put all those cops into the rougher
neighborhoods of Richmond, instead of harassing the decent citizens
who buy guns at a gun show.
And, if you are sitting down, the main BATFE agent at the show told
Showmasters' management that Richmond was going to be the model for
this kind of behavior across the nation!!!
BUT, THERE IS GOOD NEWS.
Steve Elliott, who heads up C&E Gun Shows and is affiliated with
Showmasters, along with Annette Gelles, who heads up Showmasters,
went to Washington with some lawyers to get this straightened out on
Monday. (BTW, Steve told me that he has spent in excess of $10,000
this year on legal fees fighting this kind of abuse.)
Steve and Annette were told by the BATFE in DC that BATFE would no
longer be sending officers to people's houses who were purchasing a
firearm and that what happened in Richmond should not have happened.
We will be watching carefully to see if BATFE keeps its word or not.
Report any such abuse immediately to VCDL, along with the officer's
name, badge number, and department."
UPDATE, from the same source:
For those who question how BATFE/police could pull this off in a
timely fashion: At the gun shows in Richmond, the State Police setup
a NICS check room where ALL the dealers drop off their NICS forms.
Later, the dealers check back to see if the NICS check has been
completed and the forms ready. All BATFE has to do is to grab the
forms as they are dropped off by the dealers, call in the contact
info and have an officer dispatched to the house. That officer
reports results of survey back to dispatcher, who in turn gives it to
BATFE. The form is then approved and released to the dealer the next
time he checks back. It is not unusual to have to wait an hour for
approval, so the average gun owner wouldn't really be alerted to
anything until he got home.
Where the disbelief seems to be coming from is that in many states,
the dealer calls in the NICS check from the show floor. Thus BATFE
would have to be in the booth with the dealer to get the NICS info
and make the dealer hold the form until the survey results were
returned. This would have also alerted dealers as to what was going
on. But that isn't how it's done at Richmond gun shows.
Continue reading "ATFE activities in Virginia"
Permalink · BATFE · Comments (2)
It keeps getting crazier...
"Defend the Second Amendment" -- an article in Pravda??????
Permalink · non-US · Comments (0)
Right to bear arms -- in Russia?
An interesting article from the Russian News and Information Agency, on liberalizing Russian gun laws. (How strange that sounds to those of us who grew up during the Cold War! Almost as strange as reading an article about Europeans calling for adoption of American gun laws, so they can defend themselves). The writer notes that Russian law allows only possession of a few types of guns, with permit processes that make New York City sound easy, but, still, at least 10 times as many Russians own guns as they did under the Soviet regime.
"[T]he public in Russia is increasingly leaning towards a more liberal law on weapons. For the last half a year the State Duma has been discussing the possibility of giving the people real firearms, as is done in the United States, for one.American statistics are the main argument of Russian firearms advocates. According to the U.S. Justice Department, 34% of all criminals were wounded or detained by armed civilians, while 40% have altogether given up an idea of an attack for fear of reciprocal fire. In those states that allow citizens to carry concealed arms, the level of murders is lower by 33 %, and of robberies by 37%.
Advocates of legalizing firearms in Russia often refer to the experience of neighboring Latvia: After the relevant law was adopted, street crime dropped by 80%, and the Latvian police force has been cut."
Permalink · non-US · Comments (1)
Mandatory explusion for gun possession at schools
Alan Korwin has an interesting note (via his email list): mandatory explusion policies at schools were driven by a Clinton-era federal law stripping schools of Federal funding unless they enacted such policies. (Another good reason, BTW, for curtailing Federal funding. Local units can as easily tax and spend as the Feds -- both get their money from the same place, the taxpayers -- and Federal funding equals Federal ability to strongarm policies and thus loss of local control of education). The Federal restriction on funding has been repealed, but local policies often remain. Click on read more for Alan's post.
Continue reading "Mandatory explusion for gun possession at schools"
Permalink · contemporary issues · Comments (0)
First use of forensic tests on firearms?
Just came across a page I'd copied long ago, a Tenn. Supreme Court case from 1842 December Term. (Don't have number of volume, but pp are 290-91, and case is Kirby v. State). Basically, a Ms. Todd was shot at night, through her window. A "very much mashed" rifle ball was found in the room.
"William Daniel proved that the made the bullet moulds for Gideon Anderson's gun, and had in his possession a bullet that was run in those moulds, and by a mark which the moulds make near the neck of the bullet, he knew that the round bullet in his possession, and the mashed bullet found in the house of the deceased, were run in the same mould because they were just alike as to said mark." He also verified the weights were identical. It was proven that Anderson had just sold his rifle to defendant, together with a stock of cast balls.
Shoe marks on ground also matched defendant's shoes, and horse tracks that matched (defendant's mare had a peculiarly shaped hind foot).
The court held that these data, together with defendant's evasive and changing story as to where he was, established guilt.
A new view of Justice Taney
We probably all know of Dred Scott and its author, CJ Roger Taney. I just encountered an unusual insight into the fellow. American State Trials, vol I at 69 ff has an account of a case he tried and won in 1819.
His defendant was a Methodist Episcopal minister charged with violating the Slave Code (which forbade whites to oppose slavery publicly), It was claimed defendant had given a sermon denouncing slavery (and saying that it was a wonder the slaves didn't rise up and cut their masters' throats, and that slaves were treated as if they had no souls, when in fact they were more likely to end up in heaven than were their tyrannous masters) to a church full of ... slaves.
Taney by the account gave one rousing jury argument. He starts by saying that everybody knows that church opposes slavery and its ministers give sermons to that effect. The slaves came voluntarly, and their masters presumably did not forbid them.
He goes on to say that a person is clearly protected in preaching their religious creed, unless the statements are immoral and calculated to disturb the peace and order of society, while "subjects of national policy may, at all times, be freely and fully discussed in the pulpit, or elsewhere, without limitation or restraint." If the sermon offended or alarmed some of the listeners, "Their feelings, or their fears, would not alter the character of this doctrine or take from him a right secured to him by the constitution and laws of the state."
He argues it is necessary to prove evil intent; and on this even his own words are not conclusive evidence. If you take his words, many of the Framers said the same of slavery, or even worse. Are they guilty of incite slave revolt? "A hard necessity" may compel us to endure "the evil of slavery for a time. It was imposed upon us by another nation, while we were yet in a state of colonial vassalage. It cannot be easily or suddenly removed. Yet while it continues, it is a blot on our national character, and every real lover of freedom, confidently hopes it will be effectually, though it must be gradually, wiped away, and earnestly looks forward for the means by which this necessary object may be best obtained. And until it shall be accomplished, until the time shall come when we can point without a blush to the language held in the declaration of independence, every friend of humanity will seek to lighten the galling chain of slavery, and to better, to the utmost of his power, the wretched condition of the slave."
This is the later Chief Justice Taney!!!!
Permalink · Framers to the Civil War · Comments (1)
Long term thoughts on the gun issue
My involvement in this area goes way back -- I started writing on it as an undergrad, about 1970, and published my first law review article on it in 1975. I think I see a historical pattern....
1960s-early 1970s. The push was for national legislation, registration, permit systems, that manner of thing. Supporters of it found it hard going. (Original GCA 68 applied only to handguns, as I recall; after the assassination of Martin Luther King it was amended to apply to rifles. So national permit systems were going to be hard sell, but fight over these continued for some years).
Late 1970s: move is to ban Saturday Night Specials, defined as handguns with short barrels and cheap. After prices rose, it was to ban all snub nosed pistols. Notice how much narrower this is than the original objective. We've gone from national registration and permits and maybe handgun bans to trying to ban pistols with barrels under 3". Some bans were passed on imports, but neither ban was enacted.
By 1980, even this is become hard to sell. I think it was 1979 when Handgun Control Inc. went out with press release that Ted kennedy was going to introduce a broad gun bill. Background was that Kennedy, who was looking at a primary run against Carter, had been stalling on any such, and HCI had to use the stories to embarass him into filing the bill.
Early 80s: skirmishing over ATF regulations and ATF abuses. I recall seeing an early Carter Admin memo where writer says someone is going to have to break it to proponents of control that Carter Admin is NOT going to push for much in way of gun laws, and that someone above the writer's rank is going to have to be the one to break it to them. Ends with Firearm Owner's Protection Act in 1986. Other side wins minor victory in ban on civilian sale of full autos made after 1986. If you had told folks in 1970 that fifteen years later gunnies would be able to push through major changes, and their opponents would have to settle for a return this narrow, no one would have believed it.
1990s: If the 60s and 70s were world war II, this is border raiding. Brady Act, requiring "instant" background checks for buys from licensed dealers. Assault Weapon ban, which expires (and whose real world effect was limited to making mfrs delete bayonet lugs and flash suppressors, no major barrier). DV ban. The issue really seems to devolve into finding some very narrow area, where when NRA defends it can be attacked in the press. That is, the entire function is to embarass the opponent rather than to enact anything of significance.
2000s: even that is starting to fade. Minor skirmishing over "gun show loophole." But since Dept of Justice studies show that only about 1-2% of incarcerated offenders who used guns got them at gun shows (and that figure includes those convicted only of firearms violations and first offenders who would have passed a background check anyway), it's hard to argue that this will have any real-world effect. Violence Policy Center with aid of media pushes the .50 caliber rifle issue, but even that gains no traction. Again, since no .50 cal has ever been used in crime, it's hard to see a real-world result.
Thus in 30-40 yrs we go from major battles to border skirmishes. Now, if a person did believe that gun control worked, it would be possible for them in 1970 to think that if the laws being fought over were enacted, some measurably good consequences would follow. I don't think that's the case today. If you could get inside the heads of the folks at Brady or VPC, who I assume are well-informed on the facts, I don't think you would find that they believe the legislation proposed since 2000 would, if enacted, change the crime picture a bit. The basis for pushing it, instead, is hopes that they can embarass the NRA in the media when it opposes. But that's a pretty thin basis for a political movement.
Another way to look at the trend. Brady Campaign started out as National Council to Control Handguns. I have its early pamphlets, in which it argues that registration and permit systems were bad ideas. That's because it wanted a complete handgun ban, testified to that effect, and thought a national permit system would be proposed as a compromise (attesting to the weak condition it thought the gun movement was in). Later, as Handgun Control, Inc., it disavowed handgun bans and advocated permit systems, the very compromise it had earlier feared. As Brady Campaign, I believe it now disavows (or at least plays down, way down) national registration or permit systems, and is content to criticize NRA for the most part, occasionally proposing assault weapon bans, but even that rather quietly.
UPDATE: in response to comments, that's an interesting bit of history. The Brady Campaign was initially named the National Council to Control Handguns (altho in fact it started out trying to ban them). There was also a National Coalition to Ban Handguns (today operating under a different name). NCCH and NCBH decided their names and acronyms were too similar, and (presumably since it had less seniority) NCCH changed its name Handgun Control, Inc.
HCI/Brady was really put on the map by Pete Shields, who had been a top-level exec (I think a VP) with Dupont. He knew organization and fundraising and PR, and took them from two guys in a tiny office into a major organization. I know some folks on the other side of the gun issue who are rather irritated at the present Brady Campaign, for having essentially "forgotten" Shields, and making the group center on the Bradys, when it was Shields who really created everything and, indeed, brought the Bradys on board. I knew Shields a little, debated him a few times, and he was a pretty decent fellow. Having searched the Brady Campaign website for his name, and found a few passing mentions and no pics, I'd tend to join in the irritation. His counterpart on the gun side was Harlon Carter, who took NRA from a few hundred thousand shooter into a 3 million member political movement. NRA named its headquarters after him, memorializes him at every annual meeting, honors his name. I'd suggest that Brady Campaign owes Pete Shields the same respect.
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CBS, .50 cals, and the strange witness
The present (Aug. 10) issue of Gun Week has an interesting headline story by Dave Workman. Last month CBS ran a hit piece on .50 BMG rifles, and it used as a major witness a fellow named Krasniqi (first name variously spelled Florin or Florim), who claimed he'd purchased scores of .50s and run them to Albanians fighting in Kosovo. He was also featured in a PBS broadcast shortly after the CBS piece. (One review of the PBS piece notes, "Though Krasniqi clearly benefited from lax gun laws, one reason he agreed to the film was to expose them. "He thinks gun laws are ridiculous in this country," Quirijns said."
Workman looked into the fellow's background and eventually came across the Federal Elections Commission records of political contributions. Strangely, for a supposed gun-runner, he contributed:
$3000 to John Kerry (exceeding the legal max; they had to send $1000 back);
$1000 to Rep. Tom Lantos;
Several thousand to Jerrold Nagler, Eliot Engel, John McCain, etc.
I went to the FEC contributors search page and it checks out. Search for "Krasniqi." You're looking for a guy in Brooklyn, zip code 11228 (He reports his employer as several businesses).
I could be wrong, but it looks to me as if he gave $4000 to Kerry and had $1000 refunded. Total contributions are over $20,000.
Might we have a "ringer" here? As a general rule, if you're engaged in illegal international arms trafficking, publicity is NOT a good thing. But this guy is featured (with his own cooperation) in a documentary film, 60 Minutes, a book, a NY newspaper article, and at least one webpage (with his pic, taken by a family member).
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Thoughts on an "evolving constitution"
I'm beginning editing on my 2d Amendment documentary film (may get around to posting some clips, but that will take a while). In one clip, Prof Gene Volokh of UCLA law (and host of The Volokh Conspiracy makes a very interesting point.
In opposing the individual rights view (and sometimes in trying to assail/defend non-RTBA doctrines) some have advanced the idea of the "living constitution," that is, that the document somehow changes meaning over time (and in this context can change meaning so dramatically that X becomes non-X).
Gene says he can't agree...the very purpose of having a written constitution is to bind yourself by a specific past decision of the people. (And it might be pointed out that the constitution's requirement for amendments -- 2/3 of both Houses plus 3/4 of the States -- demonstrates that any changes were meant to be formal and reflect, not a vague perception of consensus, but a formal, democratic, decision supported by an overwhelming majority of Americans). But, he asks, IF we were to take that view, how would we decide whether the Constitution had changed or evolved?
We could look to decisions of Congress (the most doubtful, since the BoR was meant to restrain Congress). But in the Firearm Owners' Protection Act of 1986, in the preamble, Congress specifically found that the 2d amendment was an individual right. There are other similar findings in other legislation, all supported by a Congressional majority vote. So Congressional decisions cannot support a view that the Constitution has "evolved" so as to exclude a right to arms. If anything, it would suggest that the Constitution "evolved" toward a stronger individual rights view.
Maybe decisions of State legislatures, or the people of the States as a polity? He points out that the overwhelming majority of State constitutions have right to arms clauses, and almost all of those point to individual rights. All the changes in these over the last 20-25 years have been to make the provisions more clearly individual rights related. So we can't cite decisions of the States, or the people of the States acting as such, either. If anything, this, too, suggests that the right would have "evolved" toward a stronger individual right.
Maybe the people at large? Without formal vote, this is hard to calculate, but he points out all polls show a great majority of the American people believe they have an individual right to arms. So the three ways we could calculate whether the right has "evolved" all point to it evolving toward a stronger right.
The only approach, he suggests, where one could argue that the right has "evolved" the other way, is to say the heck with Congress, State legislatures, the people of the States, or the people in general -- the views of judges, the legal elites, etc., have "evolved" against an individual rights. This, he suggests is the one completely impermissible approach to constitutional "evolution."
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Leg history of Militia Act of 1792
The Militia Act of 1792 (in effect until 1903) required essentially every male of military age to own a musket or rifle and ammunition. I recently found some of its legislative history (beginning in 1790) and it is interesting. Major themes were (1) what to do about people too poor to own a gun? (2) If we have the federal government just give issue them guns, wouldn't that let the federal government disarm them at a later date? (3) Various States let Quakers out of militia service if they pay a fee. Should we let them off the fee, or would that be a benefit to one religion (they neither serve nor pay), and how do we make up the lost revenue? Here's a few samples (From 2 Jos. Gales, Debates and Proceedings in the Congress of the US (1834) p. 1851 ff:
Mr. Parker observed ... it must be well known that there are many persons who are so poor that that it is impossible they should comply with the law. He conceived, therefore, that provision should be made for arming such persons at the expense of the United States....
Mr. Fitzsimmons [objected to a provision requiring drill 4-5 times annually] As far as the whole body of the people are necessary to the general defense, they ought to be armed, but the law ought not to require more than is necessary; for that would be a just cause of complaint.
Mr. Jackson said, that he was of the opinion that the people of America would never consent to be deprived of the privilege of bearing arms. Though it may prove burdensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages are justly considered. Original institutions of this nature are highly important. The Swiss Cantons owed their emancipation to their militia establishment....
Mr. Parker said, that in Virginia there is a law, which provides that poor persons, not able to arm themselves, should be equipped at the expense of the State. In every State there are doubtless many persons, who ought to be provided for by the General Government; and if they are not the law is rendered impractical....
Mr. Sherman said, ... There are so few freemen in the United States who are not able to provide themselves with arms and acoutrements, that any provision on the part of the United States is unnecessary and improper.
Mr. Vining ... asked by what means minors were to provide themselves with the requisite articles? Many of them are apprentices. If you put arms into their hands, they will make good soldiers, but how are they to procure them?....
Mr. Wordsworth ... asked the gentlemen who favorered the motion what was the extent of their wishes? The motion appeared at first to be in favor of poor men, who are unable to purchase a firelock; but now it seems minors and apprentices are to be provided for. Is there a man in this House who would wish to see so large a portion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them? Nothing would tend more to excite suspicion and arouse a jealousy dangerous to the Union.
[Motion to amend act to change "provide himself" with arms to "shall be provided." Objection that it would "leave it optional with the States, or individuals, whether the militia should be armed or not. The motion was lost by a great majority."]
[Motion to strike section requiring conscientious objects to pay a penalty]
Mr. Burke ... This, he said, was called the land of liberty ... and yet we are going to make a respectable class of citizens pay for aright to a free exercise of their religious principles...
Mr. Wilkinson [asks] ... but who are the militia? Such men, he presumes, as are declared to be so by the laws of the particular States, and on this principle he was led to suppose that the militia ought to consist of the whole body of citizens without exception ... he did not anticipate an abuse in the power of exemption on the part of the States....
Mr. Burke [proposes exempting Quakers, those religiously scrupulous, stage-drivers, and teachers] "but their pupils, the students in colleges and seminaries of learning, should not be exempt; youth is the proper time to acquire military knowledge."
Mr. Jackson ... averted to the exemption of Quakers provided in the bill. He said that the operation of this privilege would make the whole community Quakers ... He enlarged upon the obligations which every man owes to society to afford his personal services to assist and defend the community; protection and service are reciprocal. Those who are exempted ought to pay a full equivalent on every principle of justice and equity...."
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Webpage on Parker case (challenge to DC handgun ban
Alan Gura, counsel for the plaintiffs challenging the DC handgun ban, has posed a webpage with the pleadings in .pdf format.
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John Roberts and judicial restraint
National Archives has posted a page of memos written by John Roberts while he was counselor to the Attorney General. One in particular (No. 6) brings to mind the challenge posted here earlier by Prof. Robert Cottrol, namely, are Second Amendment supporters necessarily better off with a "conservative" justice, or might we be better served by "liberal" ones who are less reluctant to strike down laws?
Here's the relevant language:
A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called "fundamental rights" and "suspect class" analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, determine the constitutionality of enactments when the issue is properly presented in litigation. In discharging that responsibility, however, courts also must, in the words of Justice Frankfurter, have "due regard to the fact that [they are] not exercising a primary judgment but [are] sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164 (1951) (concurring opinion). Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.
Two devices which invite courts to do just that are "fundamental rights" and "suspect class" review. It is of course difficult to criticize "fundamental rights" in the abstract. All of us, for example, may heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label "fundamental," and then resort to it as, in the words of one of Justice Black's dissents, "a loose, flexible, uncontrolled standard for holding laws unconstitutional."J Griswold v. Connecticut, 381 U.S. 479, 521 (1965). The broad range of rights which are now alleged to be "fundamental" by litigants, with only the most tenuous connection to the Constitution, bears ample witness to the dangers of this doctrine. Analysis based on "suspect classes" presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other "insular and discrete" groups, however, represents an unjustified intrusion into legislative affairs. As with fundamental rights, there is no discernible limit to such intrusion. As Justice Rehnquist has put it: "Our society, consisting of over 200 million individuals of multitudinous origins, customs, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find 'insular and discrete' minorities at every turn in the road." Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (dissenting opinion). Both "fundamental rights" and "suspect classes" stand as invitations for a degree of judicial intrusion not invited by the Constitution, a means through which courts impose values which do not have their source in that document.
UPDATE: Thanks for the comment -- I did indeed mean John Roberts, the judge, not John Edwards, the former VP candidate! Typo corrected.
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Lott on Demos creating fake gun groups
John Lott has an interesting posting regarding the "American Hunters and Shooters Association," a strange group that recently appeared out of nowhere and claims to represent moderate gunowners (i.e., one who support AW bans and any type of gun control that has a 10% chance of passage).
Lott points out--
1. Their website turns out to be registered to a DC public relations firm that represents the Democratic Leadership Council and other Demo party organizations.
2. The head of the organization is John Rosenthal, who in fact is a founder of an antigun group.
3. The address of the new organization is in the same building as Democratic Leadership Council.
4. The present head of the DLC is one Hilary Clinton. Dick Morris has written about how she specialized in creation of fake "grassroots" groups to back her agenda, and set up a task force in the Clinton White House to brainstorm creation of these.
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Bellesiles: Clayton finds a convert
Clayton Cramer posts "Dr. Luker Sees The Light".
Clayton is of course the fellow who brought down Michael Bellesiles, and he had written an article on problems of integrity in the historical research field, which Dr. Ralph Luker had criticized as overstating the problem. But recently Luker penned an open letter to the Organization of American Historians, asking if it "has become the place where Offences Are Honored." Luker points out that the OAH has never revoked its award to Bellesiles, and is still listing some other discredited historians in its "distinguished lecturer" program.
Clayton ends by asking whether the field of history "has become so controlled by the faction that lies or excuses lies--people like Bellesiles, John L. Larson, editor of the Journal of the Early Republic, and the leadership of the OAH--that the profession of historian no longer exists in any meaningful sense."
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Mfr protection passes Senate, and mfr stocks rise
The gun manufacturer protection bill passed the Senate, and word is that Ruger and S&W stocks shot up 25% upon hearing the news. Ah, if I'd only had a little money to invest! (With five kids, fat chance of that).
[In case anyone wonders where all the postings went, the program archives everything at the end of the month. I was out of town until last night, so the main page appears blank].