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September 2005
New Orleans gun suit
Steve Halbrook, Plaintiffs' attorney, has posted the court's order, and the motion for temporary restraining order.
BTW. Dave Kopel has an excellent article on the gun seizures in Reason Online
Permalink · contemporary issues
Latest British proposal
The Guardian reports that the current British proposal is to outlaw replica guns, including paintball and airsoft guns. "Mr Walker, 62, a former Bedfordshire police officer, remains haunted by the shooting of his sons. "We just want to get guns off the street," he said. "The frightening thing is how many there are."" What that has to do with replicas I have trouble seeing. I suppose when you've already outlawed virtually all real firearms, and feel the urge to pass some more gun laws anyway, you have to make do with what you have....
Interesting views of the Constitution
From the Harvard Crimson comes an article on a brief submitted in the Solomon Act case (the Act requires universities accepting Federal funds to provide equal access to military recruiters). The brief makes the point that the Constitution gives Congress no enumerated powers relating to education, but does give Congress the power to "raise and support armies."
The article quotes Richard H. Fallon, a prof. of Constitutional Law at Harvard, to the effect that “It’s an argument which some of the real hard-line, right-wing conservatives who would like to go back to something more like an original understanding of the Constitution push..."
And over at the Volokh Conspiracy, Orin Kerr reports on a case now before the Supremes, involving "anticipatory" search warrants. These anticipate the defendant doing something in the future (in this case, receiving child porn which he had ordered) and essentially find that, while there is no probable cause right now, upon the defendant's doing the anticipated action, there will be probable cause in the future, so let the warrant issue now, to be executed only after the anticipated act. The minor problem is that the Fourth Amendment clearly says "no warrant shall issue but upon probable cause." Kerr notes that Justice Breyer is almost sure to vote in favor of such warrants, since he voted to uphold them when he was a Circuit judge. Kerr comments: "Note how Breyer replaces the textual requirement that "no Warrants shall issue, but upon probable cause" with a somewhat different inquiry into whether the warrant "can help assure that the search takes place" when probable cause exists."
Just a caveat for those who feel that a 2nd Amendment test case will be a slam-dunk because the historical evidence, language, etc. is clearly in favor of an individual right.... What the Constitution says, and what the Court finds it says, can be entirely different things. (We've already learned that "Congress shall make no law" abridging freedom of speech somehow permits Congress to outlaw campaign ads that so much as mention a candidate's name within 30 days of an election, etc.).
Brady Ad Campaign
Another contender for the "Pitiful" award...
Brady Campaign is beginning a billboard campaign attacking Florida, as a tourist destination. The claim is that its recent expansion of legal self-defense will make it more dangerous to tourists (or at least those who break into houses, not a common vacation pursuit).
The billboards will go up at various Florida locations, thus reaching only.... people who have already come there as tourists.
This raises a very interesting question -- just what IS Brady's agenda, other than (a) a generalized desire for fewer guns and things associated with them, and (b) fundraising. The FLA law doesn't single out guns -- it's about self-defense. We might ask the same question in the context of Brady's objections to liberalized issuance of CCW permits. What's its objection to people passing a criminal background check, taking training, getting a permit, and then carrying? I thought Brady liked background checkis and permits. Whether a person carries openly or concealed surely can't matter much to Brady's organizational purpose.
The only sense I can see to this is (a) Brady long ago got all it could get in the way of laws; (b) it sure as heck isn't going to get any more within the foreseeable future (between solid GOP control of Congress and the White House, 9/11, and Hurricane Katrina); (c) but they can't just lay everyone off and file for corporate dissolution, so they have to come up with billboards against liberalizing self-defense.
The ability of political organizations to survive their purposes is an interesting topic. Might just write about it someday. Planned Parenthood, as I recall, has a budget of hundreds of millions, in a time when you can get condoms in any drugstore. Mothers Against Drunk Driving still holds forth, in a time when the DUI limit is .08 (not too many years ago it was .15), and punishments are about a strict as could be desired (first offence: day in jail, about a thousand in fines, 90 days suspension of license, loss of insurance; refuse the breathalyzer and license is suspended for a year and prosecution can comment on refusal as proof of guilt).
Video of American Enterprise Institute 2d Amendment Symposium
In 2003, the American Enterprise Institute in Washington DC hosted a symposium on the Second Amendment. I had it videotaped, and have finally completed organizing the video, compressing it, and creating a quick webpage of the video. Speakers included Professors Akhil Amar of Yale Law School, Sanford Levinson of U. of Texas Law School, and Robert Cottrol of George Washington Univ. Law School. Caveat: you need high speed or a lot of time -- even trimmed, the files are 6-10 megs.
Permalink · Academic treatment
Geo. Mason Univ. symposium
GMU had its symposium on Saturday, which they said they hoped would be the first but not the only such conference. I was a bit groggy, since I was jet-lagged three hours, the catering service had failed, and hence there was no coffee. I'll just list what I remember as major points:
Steve Halbrook discussed the Seegers case, challenging the DC gun law, and which was dismissed on claims the plaintiffs had no standing. DC Circuit affirmed, altho four judges (including a fellow named John Roberts) voted for rehearing en banc. He's either filed or will file a petition for cert. (I forget now which). Standing claim will include the theory that I've blogged earlier, a modification of aesthetic standing used in enviro cases.
Joyce Malcolm discussed the loss of the right to self-defense in Britain. The case of Tony Martin was of course a topic -- he's a farmer who, after being burglarized six times with no results from the police, shot two burglars coming up the stairs of his home. He was sentenced to life for killing one and ten years for killing the other. The surviving burglar got, I think, three years, and is now suing him (with the gov't helping to pay the burglar's attorney). The BBC has a website on self defense which counsels that if you bump into a burglar in the dark and hit him with a crowbar (about the best tool you're allowed to have) once, you can argue to the jury (note the assumption you will be tried for it) that you used excessive force (note the assumption there) in a panic, and they might let you off. But do not, repeat not, hit him a second time, or you're surely sunk.
As the British statutes prohibit carrying *anything* with the purpose of self-defense, you can be convicted of an arms law violation for carrying a walking stick (if not obviously needed for walking), etc, and people have been so charged.
British TV had a poll on what law the people most want enacted, and a member of Parliament had pledged to introduce whatever won. The clear winner was a bill to allow use of any force not grossly disproportionate, in defense of one's home. The MP refused, saying this was appalling.
She noted the effect: British crime is skyrocketing, and you are now six times more likely to be mugged in London as in NY City.
Randy Barnett had some interesting thoughts. If the RTKBA were recognized as a constitutional right, it would still be subject to some regulation. Probably most would be reviewed under "strict scrutiny," where the gov't must prove the law serves a compelling gov't interest, and is narrowly tailored to serve that interest without fall-out in other areas of the right involved. The fact that gun control advocates fight against application of this standard suggests to him that in fact they do not ultimately want reasonable regulation, or only laws that serve a compelling interest and are tailored to do that. He added that most federal regs now would probably pass that test -- but only because gun owners, thru the political process, have protected their rights in most cases. He noted that an activity really can't be outlawed, or tightly regulated, if it is widespread, due to political opposition. Attempts to restrict smoking by law only came about after most Americans stopped smoking. Thus we have the paradox that government can only act against a perceived "problem" if it is a small one!
Speaking for "the other side" was Saul Cornell. Unfortunately, he spoke on the first panel, when our problems with caffeine deprivation were worst. I do recall he argued a theory which was a variation on collective right, namely it is an individual right to serve the state in a militia. (The same as collective right in terms of result, but called an individual right. I guess this means that everyone has a right to serve in the Nat'l Guard whether the Guard wants them or not. Maybe we could get a gay triple amputee, 65 yrs old, to try to enlist and test it). He cited the 1776 Penn. Declaration of Rights, which referred to a right to bear arms for defense of themselves and the state, pointed out that the Pa Const. referred to bear arms in the militiary sense (conscientious objectors can be exempted from bearing arms). Where this gets us on "keep" arms may be another question.
UPDATE: Saul Cornell just emailed me the following:
Sorry we did not get a chance to chat more at the conference. I think it is important to note that the keep and bear formulation only emerges after Pennsylvania. While some read keep and bear as keep and/or bear I read it as keep and bear those arms necessary to meet the legal obligation to serve in the militia. If we recreate an 18th century style militia then that might well mean everyone gets an M-16-like weapon. This would be one obvious difference between a civic conception and the modern collective rights view. I also think the civic conception makes domestic disarmament less likely since it is harder to imagine how you could have an 18th century style militia if you had a British style policy regarding firearms. Clearly there was broad agreement among Americans that British style game laws were not consistent with the American conception of the right to keep and bear arms. [DTH note: the British Game Act of 1671, repealed in relevant part after the 1688 Declaration of Rights, forbade anyone with less than a certain value of property to own a gun].
Permalink · Academic treatment
NO lawsuit
Back from the Geo. Mason Univ. second amendment symposium--will blog my notes later in the day. Steve Halbrook has filed the New Orleans lawsuit, had copies, and described events.
Suit is filed in US District Ct, ED La. (Eastern District is actually sitting in other districts, since its courthouse is still out of action). Plaintiffs are NRA, SAF and an individual named Buell Teel (more may be added). Four counts. (1) violations of RTKBA under La. const., 2d and 14th amendment. (2) dep of property w/o due process. (3) Equal protection (armed security guards allowed to keep arms). (4) Illegal search and seizure.
Teel was proceeding in his boat to carry out rescue missions when he was approached by a La. sheriff's boat occupied by NYPD officers. They levelled M-16s at him, asked if he had guns. He replied yes (I think a couple of deer rifles). They boarded and confiscted them. He asked for a receipt and they refused, saying it was impossible to give them to everyone who was having guns seized. He continued on and had another boat, with local deputies, stop him the same way (guns levelled) with the same demand.
Plaintiffs got an emergency hearing, judge saying serious constitutional issues were involved. City attorney happened to be in building an attended a hasty hearing. CIty's position was that no guns had been taken from anyone and they'd never issued the confiscation order (nevermind that all news services had been reporting on it and confisctaions had been televised). City agreed to a consent order under which it must stop confiscations and will return guns taken.
The last is going to be a bear, since in many cases no receipts were given! Guns were seized by a variety of police agencies many, as in this case, from out of state. How they are going to figure out what gun should be returned to whom is going to be rather difficult!
PS--they're still seeking plaintiffs. See the previous post on how to report for duty as such, or call (888) 414-6333. (They ask that you only respond if you actually had a gun seized, or house searched for arms, or something like that. They've been overwhelmed by calls and emails saying someone saw it on the news, etc.). And if anyone knows the whereabouts of Patricia Konie, the lady who was on the broadcast video getting body-slammed by Calif. State police over a handgun, please email me personally. A friend is trying to reach her.
Permalink · contemporary issues
FBI Uniform Crime Reports
The FBI has posted its preliminary Uniform Crime Report for 2004 (Pdf format). A few notes:
In the first full year after expiration of the assault weapons ban, murders declined 3.6%, as did robberies Can't tell much more, since at least for me their interactive map doesn't interact at all.
Permalink · contemporary issues
Take on Katrina and gun confiscations
The Detroit News has this take on the issue....
Permalink · contemporary issues
Scottish violence
From the Times of London:"Scotland Tops List of World's Most Violent Countries".
Virginia1774 webpage
Virginia 1774, who comments here, has established webpage on VA's history in the revolution and the right to arms. Very interesting material!
Which reminds me, and I'll post on this when I have the time: if you follow the wording changes in the 2nd Amendment, they go like this: the Virginia ratifying convention demands a guarantee of right to arms and the militia. James Madison reverses the order, putting the militia clause first, and makes a number of other changes. The House committee makes changes on those, and more on the floor of the House. But by the time the Senate gets through, it's back to the VA language. Only the reversal of order survives from Madison's composition.
Permalink · contemporary issues
1st anniversary of AW expiration
Here's an an article from the Delaware News-Journal on the first anniversary of the expiration of the "assault weapons" ban. As expected, the expiration has had no effect on crime, despite the dire promises of Brady Campaign, VPC, etc., that the streets would be flooded with deadly weapons.
The paper tracked down Sarah Brady, whose response to the non-problem was "Thank goodness we haven't seen any huge increase [in shootings]. That doesn't mean there isn't one around the corner."
Permalink · contemporary issues
Thought for the day
An author (I forget who) remarked that European countries define themselves in terms of ethnicity or culture, whereas Americans define themselves by a Constitution. I asked myself -- how would be define "Americanicity"? Presumably the best indicator would be the naturalization oath taken by naturalized citizens.
Sure enough... a naturalized citizen swears his loyalty, not to the United States as such, but to its Constitution and laws: "...that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same..."
Permalink · contemporary issues
Posse Comitatus Act and response to Katrina
In the wake of the hurricane, there have been references to the Posse Comitatus Act as barring use of active-duty military in restoring order, and this AP story says lawmakers are considering repealing the Act. If they'd just read the Act, and the Constitution, they'd realize there is no such need.
The Act provides:
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.."
18 USC 1385. Note the exception for uses expressly authorized by the Constitution. When we turn to Article IV, section 4 of that document, we find: "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."
So the President has, and had, power to use the military to restore order ... provided the Governor requested it.
Continue reading "Posse Comitatus Act and response to Katrina"
Permalink · contemporary issues
SAF, NRA seeking plaintiffs in New Orleans
Second Amendment Fdn. has announced that, in cooperation with NRA, it's investigating legal action over the NO gun seizures. They request that anyone who was on the receiving end email [email protected] with name, address, phone no, and date of seizure and number of guns taken. (I'd assume that many who were on the receiving end presently have no address or phone, let alone ability to access the internet, but it's worth trying.
UPDATE" Welcome, instapundit readers! Take a look at the main page -- I've got notes on Roberts' position on the Second Amendment and other goodies.
Permalink · contemporary issues
Self-defense and homeowners' insurance
The New York Law Journal reports a NY appellate case on the topic. The insured shot an intruder in his house, was charged, plead self-defense, and jury acquitted him. The intruder's estate then sued him civilly. The appellate court held that his insurer had no duty to defend him, since the policy excluded coverage for intentional, rather than negligent, acts (to be precise, it excluded act "expected or intended" by the insured). The article notes that courts around the country have split on this issue.
Roberts on the Second Amendment
Thanks to a tip in a comment to the previous post, I've found a longer transcript of the 9/14 hearings on Robert's confirmation. Basically, (1) Roberts correctly sees Miller as going to the nature of the gun, and not as being a collective rights case; (2) but he sees Miller as leaving the issue up in the air, not as settling it in favor of individual rights (you can see Miller either as recognizing an individual right limited to military-type arms -- which I think is fair, based on the fact it remanded to take evidence, or as having decided only the narrow issue of whether non-military arms are covered, and leaving open the result if the arm IS military; and (3) he sounds like he'd vote for cert., so the issue will likely get hot, soon. Here is the relevant part:
"FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.
The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.
FEINGOLD: [I have no idea why there are two successive "FEINGOLDs" here. This appears to be continuous Feingold, that is, the above para. is not Roberts. That is also borne out by the reference to actions legislatures should not take "in my view," hardly the language of a judicial nominee] The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.
In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.
The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.
So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?
ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.
The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.
The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.
In other words, it's only the right of a militia to possess arms and not an individual right.
Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.
I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.
So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.
FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?
ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, "I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts." So I do think that issue is one that's likely to come before the court."
What's really interesting is how much Roberts knows about what is, to most jurists, a very obscure area. He knows that Miller involved a sawed-off shotgun, was decided in 1939, knows that the collective right view was presented in it, knows (although I'd read it differently) what the case held, knows what circuits are split and which way, even knows the lingo (I suspect most judges if asked about second amendment "collective rights" would wonder what that means). Perhaps it was covered in his briefing, but I doubt a fellow could remember that much given how much he must have been briefed on -- I'd suspect he's done a fair amount of reading on his own.
My own take on the Miller question follows....
Continue reading "Roberts on the Second Amendment"
Permalink · contemporary issues
Judge Roberts on guns and interstate commerce
AP reports that Roberts was questioned by Diane Feinstein relating to the Gun Free School Zones Act, and responded that the problem had been that the Act had no jurisdictional requirement (i.e., a provision stating that it only applied if the possession had some specified link to interstate commerce) but that that would be easily fixed legislatively (Feinstein cuts him off, but he seems to have started to say, since guns move in interstate commerce).
As I recall, Lopez did mention the lack of a jurisdictional requirement, but concluded that wasn't the key. Rather, it was that possession simply didn't affect commerce, period. And it suggested pretty strongly that the fact a gun had once moved in commerce wasn't enough of a link.
Humorous note: Feinstein apparently has forgotten that Congress re-enacted the Act, after it was stricken, adding a jurisdictional element -- that the gun has "moved in or otherwise affected" commerce. As noted above, moved in is probably invalid under the Lopez case. But it is funny to see a Senator talking about doing a legislative fix and forgetting that she's already done that.
(Transcript of questioning follows below)
UPDATE: Dave Kopel has some interesting observations regarding Robert's other comments on the interstate commerce power. On this issue the judge (whose caselaw suggested a desirably less-than-all-encompassing view of that power, does seem to be backtracking.
Continue reading "Judge Roberts on guns and interstate commerce"
Minnesota church rulings
From what I gather, Minn. law permits establishments to bar licensed CCW holders from carrying, if the establishment puts up a sign to that effect. A church challenged the provision and a local district court has entered a ruling striking it down. The argument was apparently that it abridged freedom of speech and religion by requiring a specifically-worded sign (the church cleverly worded a sign that had a religious msg. and didn't quite conform, so as to set up the suit).
Hmmm...
1. As to freedom of religion, the church can always rule out packing with a sign, so it really comes down to the sign.
2. As to freedom of speech... there is a doctrine that requiring speech is the same as forbidding it. But does this mean that we can object to the myriad of required signs? Those things with notice of workers' comp, elevator inspections, and yes, the signs required to be posted in gun shops? The signs posted on everything in California (even indoor parking garages) warning that this or that (in that case, exhaust fumes) are "known" by the state to be carcinogenic?
3. The effect may hinge upon how the law is worded. Here in AZ, for instance, the law defines misconduct with a firearm to include carrying if the establishment is signed or personal notice is given. If you strike the sign requirement, I don't think that makes carrying a violation of that statute. I think basic due process would forbid prosecuting a person who is conforming to the clear face of the statute, whether or not he's familiar with the caselaw. I suppose a church could charge persons with trespassing for refusing to obey. I'm not sure how one would reconcile calling armed police to imprison a person consistent with such fine feelings of nonviolence, but I suppose the church would find a way.
Permalink · contemporary issues
Florida self-defense bills introduced in Michigan
Two bills have been introduced in MI, patterned after the one passed in Florida a few months ago. They're reportedly a little narrower, only extending to defense in a dwelling.
Permalink · contemporary issues
Commentary on new Texas law
Scott Henson, who testified for the ACLU in favor of the new Texas law, has a commentary on how it's being implemented. Or not implemented.
More below....
Continue reading "Commentary on new Texas law"
Permalink · contemporary issues
Tips for those writing law review articles
Gene Volokh has started an interesting thread, where he asks for comments from law review editors on their process for screening articles. Comments so far are mostly from primary journals at the top 25 or so schools. They give some very interesting insights (which are totally outside my experience, which came at editing a law review 30 yrs ago, when there were many fewer submissions). Essentially:
Some of these places are getting 80 articles a day, others about 80 a week; initial screening is more like a quick skim.
The cover letter is thus VERY important, followed by the beginning of the article.
Turnaround is much quicker than in my day, usually a few weeks. If you submit to several reviews, and get an acceptance from one, you can go to others that you rank more highly, asked for expedited review, and get it in a few days.
The majority (and these are top reviews, mind you) get immediately chucked because they're terribly written, merely recite authority without adding analysis, are by law students, or are re-hashes of past articles by the same author with few, if any, changes.
Not that it'd matter to me, but it helps to have a big name. The smart reviews spot ones by well-known authors and review them immediately, in hopes of pumping out an acceptance before the other reviews can examine it and accept.
Permalink · contemporary issues
Gun free schoolzones
Alan Korwin has an interesting map depicting effect of the "Gun Free Schoolzones Act" in reality. Here's what its ban of guns within 1000 ft of a school looks like in Phoenix. I've seen depictions of Tucson, with similar results.
The one good thing is that no cases have been brought under it, for the simple reason that it's unconstitutional. The Supremes struck it in Lopez, for lack of a connection to interstate commerce. So Congress re-enacted it with a list of findings that possession in such areas does affect commerce -- but the opinion had noted that such findings would not affect its unconstitutionality. Glad to know Congress takes such a serious attitude toward its oath to support and defend the Constitution.
Permalink · contemporary issues · Comments (1)
Thoughts on the wording of the Second Amendment
Most of the controversy over the Second Amendment arises from the fact that it has both a "militia clause," stating that a well regulated militia is essential, and then the "right to arms" clause. Prof. Volokh's article The Commonplace Second Amendment points out that the use of a prefatory clause stating a purpose was quite common in State constitution drafting of the time. (This makes sense. The idea of judicial review, of a court striking down laws as unconstitutional, was undeveloped at the time. As the Jefferson-Madison letters on the idea of a bill of rights suggest, a bill of rights could be seen as establishing certain rights beyond controversy, not to guide the courts, but to let the people know clearly when rights had been infringed, so that they might vote the scoundrels out, rise up in arms, or otherwise react en masse. So why not state why a right was important?)
It turns out Jame's Madison's original version of the Bill of Rights, as introduced in Congress, had several "purpose" clauses in it:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
......
In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate."
Permalink · Second Amendment wording · Comments (2)
VA gunshow operator considering class action
From CNS News: the operator of the RIchmond-area gunshow that had the ATFE/State Police stake it out and run investigations of its buyers, based on their instant-check forms, is considering a class action lawsuit.
"The email address, [email protected], has been activated to receive messages from those who believe ATF or other law enforcement officials improperly violated their privacy or tried to discourage them from making lawful firearms purchases at the C&E shows."
More below.
Continue reading "VA gunshow operator considering class action"
Permalink · contemporary issues · Comments (0)
Militia protects LA neighborbood
From the Austin American-Stateman: Armed militia protects its New Orleans neighborhood: Band of neighbors survived Hurricane Katrina, then fought off looters.
Continue reading "Militia protects LA neighborbood"
Permalink · contemporary issues · Comments (2)
Violent gun confiscation in NO
If any Louisiana attorney wants a test case, here it is. Police entered the home of elderly Patricia Konie,asking that she leave. Her street is dry, you may notice. She explained that she didn't want to leave, she had food and water and, in case of looters, a gun. They asked to see the gun, and she produced a revolver, carefully holding it sideways around the frame and cylinder. The officers then body-slam her into a wall, take it, and escort her out staggering.
Video is lead story on Gun Owners of New Hampshire's webpage. I've seen rumors that ABC broadcast a full tape of the incident (i.e., with soundtrack) but haven't found it yet.
UPDATE: the officers involved were reportedly California Highway Patrol, not Louisiana folks. That may explain some things, i.e., they've never heard of a right to arms.
FURTHER UPDATE: if anyone has info on the whereabouts of Ms. Konie, please email me. A friend of hers has contacted me and is trying to find where she is.
Permalink · contemporary issues · Comments (7)
Battlefield conversions in N.O.
It's even getting thru to the Boston Globe: 'Her comment was, 'I was a card-carrying, antigun liberal -- not anymore,' " Roe said. ''She said, 'I'm going back home, and I am not going back unarmed.' "
Permalink · contemporary issues · Comments (2)
My two bits on FEMA
Off topic, but I was a federal bureaucrat of sorts for nearly ten years. See extended entry for details.
Continue reading "My two bits on FEMA"
Permalink · contemporary issues · Comments (0)
Further thoughts on New Orleans
Comments to the previous post have led me to do a little thinking. I'm not the one to do it (not admitted to practice in LA), and the courts may nonfunctional (I saw a law blog posting where they mentioned that the district court and the 5th Cir. were badly flooded ... and where do you keep records in a counthouse? In the basement....) Anyway,
1. As noted below, LA has a right to bear arms clause in its constitution (with an exception for CCW laws, making it obvious that it's individual and broad).
2. As far as the federal rights goes, LA is in the 5th Circuit, which recognizes the 2nd Amendment as an individual right. The most probable result of a federal challenge would be either (a) a win or (b) some caselaw on time-manner-place limitations of exercising the right, which would be useful toward establishing a jurisprudence of the amendment. It might also lead to a decision on incorporating the 2d via the 14th, an issue not present in Emerson.
3. The right to keep and bear arms is nowhere more important than in an emergency such as this, when the most fundamental right of all -- to defend oneself and one's family when the government has failed to do so -- is on the line.
4. Assuming that a present-day challenge is out of the question, the courthouse being under water and all that, how would one be brought down the road? One comment mentioned an action for intentional infliction of emotional distress... I doubt that'd fly. I suspect, tho, that emotional distress would be compensable in a 1983 civil rights suit against the state. I recall you can recover nominal damages in one of those, too. Now, if someone was attacked, under conditions where they could have defended themselves, there would be a serious basis for seeking damages. Considering the conditions there (the jails having been opened up) there would be a basis to fear that.
Permalink · contemporary issues · Comments (4)
Same old-Same old in New Orleans
Via Bob Dowlut:
The NY Times reports:
"NEW ORLEANS, Sept. 8 - Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered weapons, from civilians in preparation for a mass forced evacuation of the residents still living here.
No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms of any kind, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.
But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards but that the police had no plans to make them give up their weapons."
So--
1. The response to chaos is to disarm the legit gun owners who want to protect themselves;
2. But of course the hired guns for the wealthy can pack full-auto guns anytime -- the wealthy and their guardians are different;
3. Not that anyone would worry about the Louisiana Bill of Rights: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." Art. I, § 11. The right takes on added meaning where people have been subjected to looting, rape, and anarchy, which the local government did little to stop (and in fact some police were photographed taking part in the looting).
4 Or, even if there were no constitutional provision, where a local Superintendant of Police can find the power to disarm by fiat, in the absense of any statute allowing it.
[UPDATE: It's been pointed out that Louisiana law (14 La. Rev. Statutes 329.6) allows a Superintendant, when the governor has declared an emergency, to issue orders "Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition..." So he does have the statutory authority. Whether the statute is unconstitutional as applied remains as an issue.]
[FURTHER UPDATE: Dave Kopel presents some strong arguments that the order does violate statute: such an order has to be published in the newspaper and filed with several offices, none of which has apparently been done, and the use of "prohibiting" in other sections of the law and "regulating and controlling" here suggests that something less than total prohibition is authorized.
Orin Kerr differs with Dave, essentially arguing (1) while the statute says the order must be published and filed, it does not say that this is a precondition to its being effective and (2) the statutory power to "control" carrying of firearms is broad enough to cover the order, which doesn't bar ownership of guns but only their carrying.]
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More on ATFE/Virginia gunshow affair
CNS News is covering it. Apparently the activities were carried out at seven gunshows in Richmond. From documents obtained, it would appear there were some Privacy Act violations, and attorney Richard Gardiner points out that it also involved illegal release of background check information (ATFE is only allowed to release to nonfeds information involving a purchaser that turns out to be an illegal one).
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Smith and Wesson
I don't know squat about finance or investment, but this report suggests S&W is doing well.
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Reports of self defense in NO
Here's one where the fellow took his .45 and bike and pedalled out of the city. The Chicago Tribune reports, as might be expected, a run on gun shops in the area. "On Wednesday morning he sold handguns to three nurses who were working in downtown New Orleans. Pirie also gave them shooting lessons, he said. The nurses told Pirie they were "going back into a war zone," he said. "They weren't going back without protection.""
"Brown, a van driver at a day-care center call Kidds Klub Academy, said she already owns a handgun.
"I got it. I'm ready," Brown said. "I'm trying to be nice, but if they come over, it's pow-pow," she said, gesturing as if she were holding a shotgun.
A 20-year-old African-American man, who declined to give his name, walked into a Mobile pawnshop and asked to look at two handguns. The man, who said he was thinking of buying a handgun for his 21st birthday in December, said he believed five evacuees from New Orleans were trying to take over portions of a public housing project and waved guns at him and his friends."
While we're at it -- in Washington state, the Good Humor Man packs heat a well as ice cream, and is glad he did so.
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2d Amendment conferences this month
September's going to be a good month for conferences. On September 23-25, Second Amendment Foundation is hosting its Gun Rights Policy Conference in Los Angeles. More data here.
On Saturday, September 24, George Mason University law school in Fairfax, VA is hosting a symposium on the amendment. Presenting will be Bob Cottrol, Don Kates, Dave Kopel, Joyce Malcolm, Nelson Lund, and others. Sign up here (They're applying for CLE credit--anytime you can get six hours of free CLE, it's a heck of a deal).
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USA Today, accidents, and "unsecured" guns
USA Today reports, with customary horror, that 1,700,000 children are in homes with unsecured guns, and that one-third of American homes have firearms in them. It goes on to say 1,400 "children and teens" are shot to death each year, and pumps for laws on gun storage (i.e., to criminalize failure to store in various ways). "It's a frightening problem," says Michael Barnes, president of the Brady Campaign to Prevent Gun Violence, a lobbying group that favors limiting gun ownership.
Let's look at the figures. Actually, in 2003 762 Americans of all ages died in gun accidents, according to the National Safety Council. USA Today gets a higher number by including teens (i.e., up to age 20) and gang-banger homicides, which are hardly revelant to safe gun storage. {UPDATE: above link is broken, but another one to NSC data.]
Economist John Lott calculated the actual number of child gun accidental deaths, and found it was about 30 per year -- lower than the number that die of drowning in buckets.
If about ninety million Americans are in households with guns, and 1.7 million kids are in households with "unsecured" guns (however the study defines that), yet only 30 a year die in accidents .... doesn't it stand to reason that the vast, vast majority of gunowners, and even "unsecured" gun owners, are doing something right? (One useful comparison: lots of houses have "unsecured" chemicals and medicines as well -- and 17,000 people die annually of poisoning accidents). If anything, the figures suggest gun owners display a truly exceptional degree of personal responsibility.
(One aspect: many refuse to use the term "gun accident," on the basis that "accident" imples no one was responsible, and someone had to mess up in each of those 30 cases. I don't hear owners of buckets and medicines and household chemicals being as choosy about the use of "accident.")
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Justice Janice Rogers Brown? It'd be great for RTKBA
There is talk that Pres. Bush might nominate Janice Rogers Brown, of the DC Circuit, formerly of the California Supreme Court, as Associate Justice (tho Orin Kerr thinks she's too libertarian for the Administration). She'd probably be one heck of a pick for gunowners.
Item, here's her opinion in Kasler v. Lockyer, 23 Cal.4th 472, 2 P.3d 581, 97 Cal.Rptr.2d 334 (2000). She writes the opinion, upholding the California "assault weapons ban" against equal protection and other challenges, and saying lots of the usual about how the legislature concluded AWs are bad. Then she adds a concurrence (that seems a bit strange to me -- presumably California courts recognize that even the writer of an opinion may have something to say that the court as a whole didn't approve):
"This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . . The supposed quietude of the good man allures the ruffian; . . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . . Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.
After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, . . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ." (Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)"
Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that " `the constitutional right to bear arms' is included among the `laws and proceedings concerning personal liberty, personal security,' and property, and that `the free enjoyment of such immunities and rights' is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 549 (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)"
I also found her opinion in Harrott v. County of Kings, 25 Cal.4th 1138, 25 P.3d 649, 108 Cal.Rptr.2d 445 (2001). Nothing esp. quotable, but she reversed a trial court ruling forfeiting an "assault weapon." The state law prohibited certain guns and also those similar to them, and the trial court found this was similar. The ruling was that the statute should be read to mean that only the Attorney General can find whether a gun is sufficiently similar, and promulgate a regulation: she notes that the ordinary gunowner cannot be expected to decide how much similarity is required.
In Merrill v. Navegar, Inc., 26 Cal.4th 465, 28 P.3d 116, 110 Cal.Rptr.2d 370 (2001) she joined the majority opinion, rejecting a suit against a gun mfr for criminal use of a firearm they made.
No federal opinions for her, since she got confirmed to the DC circuit only three months ago (vote was 56-43, straight party lines except for one Demo crossing over to vote for her).
Item, here's Larry Pratt's review of her past firearms decisions.
Joe Biden has already threatened a filibuster.
Permalink · contemporary issues
Sunstein on the future Roberts, C.J.
(Blogging's light; I spent the last two days editing a first draft of the first third of the Second Amendment documentary).
Cass Sunstein, writing in the Wall St. Journal Online, suggests (much to his own relief) that John Roberts is not a constitutional "fundamentalist," whatever that is. (His definition seems to be a judge who is conservative and willing to do something about it).
I'd suggest a more accurate differentiation would be:
1. Someone (Sandy Levinson? It was in the Supreme Ct Rev, back when I was in law school, hence 1975 or before) suggests that approaches to the constitution divide the same way that religious views did in the Reformation, namely:
a. The "Catholic" view: interpretation of the key document (bible/constitution) is best confided to a group of experts, functioning as an institution. (Thus is is the business of the courts to determine the constitution, and it is a bit presumptuous for Congress to vote against a proposition, or the President to veto it, based on constitutional concerns. Their business is finding good policy, not interpreting the Constitution). Once questions are decided, you use them to build a hierarchy of decisions, with emphasis on deciding the present issues consistently with past decisions. You rarely question past decisions, since much may have been built upon them. The document is sort of a "living" document, since later decisions are part of it. [At the same time, the decisionmaker thinks of himself/herself as "finding" meanings, just courts "find" the meaning of the common law, as if it were Holmes' brooding omnipresence in the sky].
b. The "Protestant" view. The document itself is key, and every person has an obligation to use their best judgment in finding its meaning. You may consider experts, but they inform your opinion rather than bind it. Congress and the President have independent duties not to pass or approve measures they think unconstitutional: they, like the Justices, have taken an oath to support and defend the document. Since the document, rather than the hierarchy of decisions, is key, if a prior decision seems irrational, you do not accept it. (The author of the article pointed out that the late Justice Black, the ultimate exponent of this view, was the son of a minister and always carried a copy of the constitution in his pocket, just as his father had likely carried a Bible, so that if a question arose in conversation he could pull it out, read it, and explain his opinion based upon the exact wording).
This view can further divide into textualists (Black, and the present Justice Scalia) who largely consider the text alone to govern, and broader originalists (Justice Thomas) who consider text important, but also the original understanding of it. This can be important on Commerce Clause questions. The text itself just says Congress can regulate interstate commerce, a very broad statement, while original understanding suggests a narrower purpose was intended.
From what little we know of Roberts, he seems mostly of the "Protestant" view (nevermind his actual religion; I'm RC myself in religious but "protestant" in a constitutional sense). I say "mostly" because some of his decisions reflect a fair amount of concern about upsetting the caselaw hierarchy.
2. Activist vs. nonactivist. This deals not with what a judge believes but in how much he is willing to do about it. How certain must a judge be that a measure is unconstitutional before he strikes it down? Should the striking be narrow or broad? Should the judge move powerfully, since the Constitution itself is at stake, or cautiously, since he is a non-elected official acting to overturn what is presumably the majority will and the policy decisions of branches assigned to make policy? Here, it's clear that Roberts is nonactivist.
This would indicate Roberts is a nonactivist, mostly but not entirely "protestant" constitutional thinker. The limitation to this analysis is of course that we have only his decisions as a Circuit judge, who is bound to follow Supreme Court rulings (more or less) and knows he can be reversed if he goes out of line. What a person does when they become part of the body giving the orders may differ from what they did as a subordinate carrying out the orders.
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Still more on New Orleans, militia, and arms
When locals fled to the Superdome for shelter, "The people were made to stand for hours .... so they could be searched "for firearms and alcohol."" Source.
With a predictable result. A A local news station reports:
"4:15 P.M. - (AP): Police say storm victims are being raped and beaten inside the New Orleans Convention Center....Police Chief Eddie Compass says he sent in 88 officers to quell the situation at the building, but they were quickly beaten back by an angry mob. Compass says, "We have individuals who are getting raped, we have individuals who are getting beaten."
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ACLU backs Texas gun liberalization
The Houston Chronicle reports that the ACLU (I assume the state chapter!) joined with NRA to support the recent amendment liberalizing Texas firearms laws. "The law, House Bill 823, was supported by the National Rifle Association and the American Civil Liberties Union and opposed by various law-enforcement groups."
The story also reports that local prosecutors are suggesting that they won't pay much heed to the law. Texas long forbade carrying of a handgun, with an exception for anyone who was travelling, a term left undefined. (After it recently adopted CCW licenses, those gave an exception, but the article says that those licenses can be denied for many reasons having nothing to do with criminal records, e.g., default on a student loan or being behind on taxes). The amendment provided that a person is presumed to be "travelling" if they are essentially a lawful gun owner, in a private vehicle, and the gun is concealed.
But prosecutors and police are suggesting that it won't stop them from making arrests! It's a presumption, so they'll arrest even if it applies, and make the person go to court to prove their case. That's probably legal, but not very ethical.
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More on looting and self-defense
Over at the Volokh Conspiracy, David Kopel floats the idea of shooting looters (pointing out a citizen's arrest is hardly feasible under the conditions), and Orin Kerr points out some hazards (need to discern who is looting necessities to stay alive, risk of "friendly fire" between two good guys each thinking the other is an armed looter.
It goes without saying that these problems would be minimized if there was any organization of the militia. I'm not talking military training, just organization at the level of an armed neighborhood watch. Even if not organized in advance, in future disasters where there is some warning, why not see if one can be hastily put together?
Now, that would be an interesting project for shooting groups in disaster-prone areas! If order were being restored in NO by something like Southern Louisana Rifle and Pistol Ass'n, divided into squads and improv companies, it'd do more for the right to arms than fifty law review articles.
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Hurricane disaster and self-defense
The New York Times reports on the situation in New Orleans:
"In a city shut down for business, the Rite Aid at Oak and South Carrollton was wide open on Wednesday. Someone had stolen a forklift, driven it four blocks, peeled up the security gate and smashed through the front door.....Some frightened homeowners took security into their own hands.
John Carolan was sitting on his porch in the thick, humid darkness just before midnight Tuesday when three or four young men, one with a knife and another with a machete, stopped in front of his fence and pointed to the generator humming in the front yard, he said.
One said, “We want that generator,” he recalled.
”I fired a couple of rounds over their heads with a .357 Magnum,” Mr. Carolan recounted Wednesday. “They scattered.”
He smiled and added, “You’ve heard of law west of the Pecos. This is law west of Canal Street.”
......
With no officers in sight, people carried empty bags, shopping carts and backpacks through the door of the Rite Aid on Wednesday and left with them full. The forklift was still in the doorway. As they came and went, the looters nodded companionably to one another.
Paul Cosma, 47, who owns a nearby auto shop, stood outside it along with a reporter and photographer he was taking around the neighborhood. He had pistols on both hips.
Suddenly, he stepped forward toward a trio of young men and grabbed a pair of rusty bolt cutters out of the hands of one of them. The young man pulled back, glaring.
Mr. Cosma, never claiming any official status, eventually jerked the bolt cutters away, saying, “You don’t need these.”
The young man and his friends left, continuing the glare. A few minutes later, they returned and mouthed quiet oaths at Mr. Cosma, and his friend Art DePodesta, an Army veteran, who was carrying a shotgun and a pistol."
UPDATE: This didn't stop a New Orleans group from holding a gun buy-back.
Interesting thought: isn't this the type of situation where a "well-regulated militia," or even a poorly regulated one, would be invaluable? Order could be restored with a radio announcement: "All militia members will report to their captain's house. The officers will organize patrols of the streets and maintain order."
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Thoughts on the wording of the Second Amendment
The immediate ancestor of the Second Amendment is the Virginia ratifying convention's demand for a bill of rights, which asked for a guarantee that:
"That the people have a right to keep and bear arms; that a well
regulated Militia composed of the body of the people trained to arms is the
proper, natural and safe defence of a free State."
The ancestors of that were in turn three State guarantees. First, Virginia's 1776 Declaration of Rights, which praised the militia but had no right to arms proviso:
"That a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free state..."
And Pennsylvania's 1776 Declaration, which had a right to arms but no militia clause:
"That the people have a right to bear arms for the defence of themselves and the state..."
And finally Massachuetts' 1780 Declaration (which added "keep" and "for the common defense"):
:The people have a right to keep and to bear arms for the common defence."
Thought: when the Framers (to be precise, the Virginia ratifying convention) worked from the existing State models, they chose the broadest wording of each. From PA came the right to bear arms. From MA came the right to keep (but with the addition of "for the common defense" trimmed out). From VA came the militia clause (which neither PA nor MA had). In each case, the broadest wording available was chosen.
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Interesting district court case on commerce
From Bardswell's webpage on caselaw comes an interesting case that raises an issue I've posed before....
Federal law makes it illegal for a prohibited person to "receive" a gun that has ever moved in interstate commerce, or to "possess" a gun in or affecting commerce. So what happens when someone receives a gun, later becomes a prohibited person, but continues to possess it? He didn't receive the gun while being a prohibited person, so the first doesn't apply. He does possess it after being prohibited, but doesn't do it "in or affecting" interstate commerce (unless he takes it on a trip, or sticks up a trucker). There is some Burger court caselaw that says just possessing a gun that has ever moved in commerce is enough, but (1) that is NOT what the statute says and (2) that flies in the face of Lopez and other recent decisions that indicate commerce is, well, commerce.
The district court here had the judicial gonads to face the issue and say the statute means what it says and the earlier USSC caselaw simply is no longer valid.
Continue reading "Interesting district court case on commerce"