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October 2005
A few quick reactions to Alito
1. I was just listening to NPR, and they interviewed a number of judges who sat with him on the 3d CIrcuit, and made no bones about their being liberal and he conservative, but all agreed that he was very intellectually honest, very intelligent, and great to work with. One commentator was in opposition, and about all he could argue was that Demos should make this a contest, not over qualifications, but over his politics/philosophy, over "do we want the Court to move to the right." The rejoinder was simple: the Court isn't supposed to be a policy-setting, a political, institution. Unless you can argue he is results-oriented, that argument doesn't hold much water.
[UPDATE: The Demos are following that playbook. "[Ted] Kennedy complained the nomination of Samuel Alito would push the court "dangerously to the right"." "Senator Kerry questioned the President's motives in a statement, asking "Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?""]
2. Got a suggestion from Matt Margolis that Republicans among us might send a donation to GOP with a note thanking them for having given up on Meirs. here's a webpage to do that. And here's one explaining the idea.
3. Publicola would have preferred Kozinski -- as would I.
4. The Brady Campaign is already out with a press release, calling him "Machine gun Sammy," over his dissent arguing 922(o) is unconstitutional. ""Judge Alito's ludicrous machine gun decision is bad enough. But it also indicates that a Justice Alito would attempt to prevent Congress from passing other laws to protect Americans from gun violence," said Michael D. Barnes, president of the Brady Campaign. "If Judge Alito had his way, the federal machine gun ban would have been struck down as unconstitutional, and the private possession of these weapons would have become legal."" I like the guy even more, now!
[Yeah, I know, possession isn't illegal even after 922(o), but this is Brady Campaign pitching it to the media, so the first doesn't care about what's true and, come to think of it, neither does the second).
5. I suspect the Meirs matter has really awakened the GOP to blogging and the internet. I've gotten four or five emails pitching Alito from them already. And I'm not even registered as a Republican!
6. Here's the most comprehensive posting I've seen on the nominee.
Permalink · contemporary issues · Comments (1)
Alito and guns
Thanks to Bob's tip in comment to the preceding post, I've found Judge Alito's dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996). Defendant was convicted of violating 18 USC 922(o), by possessing post-1986 machineguns (in this case, MGs not lawfully owned in 1986). Majority upholds conviction, rejecting both commerce clause and 2d Amendment arguments.
Alito dissents, focusing on the commerce clause, and beginning "Was United States v. Lopez, 115 S.Ct. 1624 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power? The statutory provision challenged in this case, the portion of 18 U.S.C. Section(s) 922(o) that generally prohibits the purely intrastate possession ... of a machine gun, is the closest extant relative of the statute struck down in Lopez..." I paste the full dissent into the extended entry.
I'd take this at the very least to mean (1) he has a proper view of the commerce clause, and (2) at least is not hostile to guns.
Pontarelli v. United States Department of Treasury, 285 F.3d 216 (3d Cir. 2002). This is one of the cases arising out of "relief from disabilities." GCA 68 allowed persons barred from gun ownership to apply to ATF for relief, thus giving a relief valve for old or minor convictions, etc. Congress put a rider on ATF's budget forbidding it to expend money for this. SInce there was also a provision allowing appeal to court for a denial, and for an evidentiary hearing, question arose as to whether, when ATF can't give relief, you can appeal to court and prove you should have it. A three judge panel in an earlier case had said yes. In this one, gov't moved for hearing en banc to overrule that. Alito was part of the en banc ruling that did so, and said you can't appeal to court. Opinion is unanimous and notes that almost every court since their earlier ruling had gone the other way.
Other Alito decisions: U.S. v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997) involved a Sixth Amendment question of venue, and Alito's dissent cites Story on the Constitution, British law, and history texts. " Would the framers have thought that prosecuting an American colonist in England on a charge of treason was permissible if Parliament had been able to craft a treason statute in which a verb denoted an action occurring in England? The answer is no. The constitutional venue provisions were meant to put in place important substantive protections against government abuse."
United States v. Dodd, 225 F.3d 340, 225 F.3d 340 (3d Cir. 2000) Alito is part of unanimous ruling that a felon in possession bears the burden of proving a necessity defense. (Felon claimed he picked up gun on street to prevent children taking it, and meant to turn it in).
Continue reading "Alito and guns"
Permalink · contemporary issues · Comments (2)
Alioto said to be the pick
Word is that the nominee will be Judge Sam Alioto of the Third Circuit.
Over on the Volokh Conspiracy, David Bernstein points out an interesting fact: if he is confirmed (and he certainly sounds qualified) the Court will now have a majority of Roman Catholics (five) and two Jews. With the Catholic majority having been created by a very Protestant president. We've come a ways from the days when JFK had to worry about reassuring people that he wouldn't follow the Pope's commands.
(PS--the revolution is set for Guy Fawkes Day, right after Benedict canonizes the martyr on the steps of the Capitol. I understand he'll then take back 15,000 Marines to reinforce his Swiss Guard, and so if any future dictator sneers "The Pope? How many division has the Pope?" he can reply "One more than the Premier has plenary indulgences.")
Continue reading "Alioto said to be the pick"
Permalink · contemporary issues
FEMA retracts gun ban
Here's the press release.
Permalink · contemporary issues
Kozinski! Kozinski!
Welcome, Instavalanch! My suggestion as to what to do is at the very end of this posting. I suggest emailing the White House at [email protected] with a message title of "Please nominate Judge Kozinski." Odds are that no one reads the thousands of emails, but they probably report numbers of emails on significant themes. The comment in Washington was that, in a Congressional office, a dozen letters on one theme is an avalache, because so few people write. If the White House gets a few hundred emails asking the same thing, it is likely to be noticed. Anyway, back to WHY you would want Judge Kozinski on the Court:
Judge Alex Kozinski of the 9th Circus, I mean Circuit, has been getting a lot of favorable blog press in the last few days. You can count the pro-Second Amendment circuit judges in this county on one hand, and he's definitely there. Here's Prof. Glenn Reynolds on the idea, and here's Prof. Tom Smith.
Qualified? If there was such a thing as overqualified for the post, he'd be it. Emigrates from Romania at age 12, still speaks with an accent, but graduated #1 from UCLA law school. In 1985, became the youngest federal appeals judge in this century. Twenty years in that post. An intellect praised by academics from far left to far right.
Here's what I can find of Kozinski's firearms jurisprudence:
Major cases:
Silviera v. Lockyer, 312 F.3d 1052 (9th Cir. 2003). Majority holds second amendment is not an individual right. Motion for rehearing en banc denied. Kozinski writes strong dissent (the more important parts are quoted by Prof. Reynolds, above). The panel opinion complains that in a prior case, "Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary that may in no way be dismissed as dicta."
United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003). Kozinski writes panel opinion. Defendant had built a homemade machinegun, and was charged with violating 922(o) (prohibiting possessing a full auto not made before 1986). Kozinski holds that, in this context (gun built at home), 922(o) exceeds Congressional powers to regulate interstate commerce. This is the only federal case I can think of that holds a regulation of gun making beyond the commerce power (I think it and Lopez are the only two that hold any gun law beyond federal power).
State of Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001). Kozinski writes the opinion holding that Idaho authorities may prosecute FBI sniper Lon Horiuchi for shooting Vickie Weaver during the Ruby Ridge affair. Government argued that the Supremacy Clause bars state prosecution of federal actors. Opinion holds that government has not established that her shooting was objectively reasonable, and that absent that, Supremacy Clause is no protection.
Lesser cases:
United States v. O'Mara, 963 F.2d 1288 (9th Cir. 1992). Defendant convicted of having an unlicensed full-auto Sten gun. Defendant argued he didn't know it was full auto. Issue was whether a defendant has to know a machinegun is a machinegun, or just has to know it is a gun, and court holds he only has to know it is a gun. Kozinski concurs, saying that that is indeed the way 9th Cir. caselaw holds, so he must join, but adding that he thinks the 9th Cir. position is wrong. (He was later vindicated when the Supreme Court took his position in another case).
US v. Foster (1997). Kozinski writes an en-banc majority opinion which construes a sentencing enhancement for carrying a firearm during a drug offense. Defendant was driving a pickup, and there was a gun in a pouch in the bed of it, covered by a snap-down cover. Kozinski concludes for that majority that this was not "carrying" -- the term implies not only conveying a gun, but having it accessible for use. Three judges dissent.
US v. Moore (1997): Kozinski sides with majority in upholding conviction in a "straw man" sale -- a real one, not a set-up. Defendant was a juvenile criminal's mother -- she wasn't the straw buyer, but provided the money, and was charged for aiding and abetting. Dissenters argue that ATF has recognized that a parent may buy for a child.
United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987). Defendant was first convicted of illegal possession of a machinegun in state court, a felony. Four years later the state court expunged the conviction and reduced it to a misdemeanor (I assume a quirk of California law). Later, bought four rifles, telling the dealer of this, and the dealer told him it was OK because it'd been reduced to a misdemeanor. He was convicted of being a felon in possession. Majority reverses, based on entrapment by estoppel (a rare-allowed defense where a person is misled into violating the law via an act or advise of a government official). Kozinski dissents, pointed out that a firearms dealer, despite his license, is not a federal official. I'd count the majority opinion as one more reason we call it the Ninth Circus. Kozinski's dissent notes that Federal law (pre-FOPA) is at loggerheads with state law... state law allows reduction to a misdemeanor, federal law refused to recognize that. "Again and again we see defendants who have been given solemn assurances by those they justifiably trust -- state judges, prosecutors, defense counsel -- that they may now enjoy all rights of citizenship, including that of owning a gun, yet find that they have committed a federal crime when they exercise that supposed right." He suggests that Congress ought to remedy it, adding "This is not the first case of this kind where I had to wonder whether the prosecution served any purpose other than to pad the prosecutor's batting average."
A possible suggestion. The White House has an email: [email protected] . I'd assume somebody counts the number of emails on a given subject and reports that. If we all sent email entitled, say "please nominate Judge Kozinski," it might just get someone's attention. They may be a bit jumpy about the internet and blogs just now (grin).
Continue reading "Kozinski! Kozinski!"
Permalink · contemporary issues
Debate on gun mfr liability protection act
Via the Volokh Conspiracy -- Legal Talk Network has posted video of a debate on the statute. Participants were David Kopel, Prof. Voloh, and Josh Horowitz, head of the Coalition to Stop Gun Violence [formerly National Coalition to Ban Handguns].
Permalink · Gun manufacturer liability
Dave K's take on two potential nominees
Over at the Volokh Conspiracy, Dave Kopel has posted his research on a couple of potential Supreme Court nominees, Judges Luttig and Alito. Neither has written an opinion mentioning the Second Amendment (which is not unusual), but a couple of firearm cases suggest that they at least take the constitution seriously and are not hostile to the amendment.
Permalink · contemporary issues
Carnival of Cordite is up!
Another Carnival of Cordite! I esp. enjoyed the competition in pumpkin catapult firing. OK, so no cordite is involved, still...
Report from Australia
An interesting column on the Australian experience. Excerpts:
"Gun ownership is rising and there is no definitive evidence that a decade of restrictive firearms laws has done anything to reduce weapon-related crime, according to NSW's top criminal statistician.
The latest figures show a renaissance in firearm ownership in the state - a 25 per cent increase in three years. And the head of the Bureau of Crime Statistics and Research, Don Weatherburn, said falls in armed robberies and abductions in NSW in the past few years had more to do with the heroin drought and good policing than firearms legislation.
Even falls in the homicide rate, which have been steady, began long before the gun law debate provoked by the Port Arthur massacre in 1996.
Nationwide, the proportion of robberies involving weapons is the same as it was in 1996, while the proportion of abductions involving weapons is higher, the latest Australian Bureau of Statistics fiures reveal. They show a mixed result in firearms-related offences since the mid-1990s. There has been a fall in firearms murders (from 32 to 13 per cent) but a rise (19 to 23 per cent) in attempted murders involving guns."
[UPDATE: typos correct. Must've had too much Foster's before typing...]
Federal official charged with assault with a dead weapon
The Orlando Sentinel reports that the Tampa head of Immigrations and Customs Enforcement has been arrested. "Long regarded as a rising star and a by-the-book administrator, Figueroa took command of ICE operations in Central Florida six weeks ago after serving in top posts in Washington, Miami and San Juan."
He apparently rose to the wrong occasion, and was busted for masturbating before a teenager. The teen aptly described it as disgusting, although one might wonder why she took ten minutes to report it. The official does sound like a strange duck ... "Assigned to Miami in the early 1980s, the former New Yorker from the South Bronx arrived in South Florida dressed like an extra for Miami Vice, a popular police show. "We had to convince him that it was only a TV show," a retired Customs agent told the newspaper. "He didn't have to look like Crockett and Tubbs all the time.""
Here's another link, mentioning the girl was 16 years old.
Permalink · contemporary issues
Yet another "this is pitiful" moment
A glance at the Million Moms March webpage shows three campaigns:
1) They urge you to contact your Congressman to oppose the manufacturers' liability protection bill: "Together we can make a difference -- we can beat this legislation and Stop the NRA in its tracks." (Given that the bill passed the House by a nearly 2:1 vote last week, it may be a little late for that ... but not too late to take the embarassment off their webpage!)
2) a pitch against .50 rifles and
3) a pitch against that FNH 5.7 mm pistol,
Both of which are distinguished by one thing: neither has ever been used in a crime. Oh, and the 5.7 is supposedly a cop killer, but the manufacturer's web page notes: "All 5.7 x 28 mm restricted ammunition (armor piercing) is sold only to law enforcement and military agencies. This ammunition is only released and shipped from a U.S. Customs controlled custom bonded warehouse (CBW) upon BATFE and U.S. Customs approval. " Without AP, the cartridge is just an underpowered .22 (the .22 Hornet, which came out in the early 1900s, runs rings around it).
Nevada CCWs and background checks
The Nevada situation (where ATFE has held that the CCW permits do not allow holders to avoid the background check) seems to be getting even murkier. The Pahrump Valley Times reports that "Firearms dealers received a last minute notice issued by The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) less than a week before the deadline. The change does not sit well with individual permit holders - who were not notified in advance." The reported basis is that "In a report published in the Las Vegas Review-Journal on Saturday, an audit found that sheriff's departments in Nevada were not performing federally required annual updates on permit holders. Frank Adams, executive director of the Nevada Sheriffs and Chiefs Association, said law enforcement lacks the staff to perform the updates. However, Marshall points out that Nye County has not done annual updates because they are not required under Nevada Revised Statute 202.366, which deals with issuance or denial of Nevada's concealed firearm permit."
What I can't figure out is how this ties into the background check question. 18 USC 922 requires the checks, but has this exception:
"(3) Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if--
(A)(i) such other person has presented to the licensee a permit that--
(I) allows such other person to possess or acquire a firearm; and
(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and (ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law"
I don't see anything in there requiring that the permit be reviewed annually. And as far as its length goes, the requirement isn't that the permit be no more than five years, it's that the transaction not take place more than five years after the permit was issued.
Permalink · contemporary issues
Miers gone; next pick?
Gene Volokh has an excellent posting on who the President should nominate next, and why. Kozinski and van Alstyne are quite pro-Second Amendment, by the way.
I'd assume the current administration would find van Alstyne too generally liberal for their tastes, although his views are, I think, thoroughly principled and rational. He calls them as he sees them, and not along partisan lines. Kozinski would be just great, altho his libertarian streak may also turn off the decisionmakers. As the good Prof. notes, any would be great additions to the Court, which cannot be said of a certain prior nominee.
Oh, please, not Gonzales! Not that I have much against him, but I hate to see someone making the same mistake twice. I don't care how much the Prez knows and likes a person, he should be able to see that the Court requires someone with serious capabilities -- it's not just another political appointment.
Permalink · contemporary issues
British crime stats in
A report on British crime figures. "A report released this week by the United Nations confirms what law-abiding Americans have known for quite some time. That being that criminals prefer victims who cannot fight back. Based on a crime survey of the world's top industrialized countries, the U.N. report indicates that a resident of the United Kingdom is nearly 3 times more likely to become a victim of violent assault than is a citizen of the United States. The report reveals that Scotland is the most violent country in the industrialized world with over 2,000 Scots attacked every week, which amounts to about 3 percent of the population on an annual basis. England and Wales are close behind with 2.8 percent of the population falling victim to violent assault. By comparison, Americans are victimized by violent offenders at a rate of 1.2 percent."
Prof. Volokh on preamble to gun mfr liability bill
Over at the Volokh Conspiracy, Prof. Volokh comments on the impact of the gun mfr liability bill's preamble on the "evolving constitution" concept (i.e., that those who dislike the Second Amendment can pronounce it evolved into nothingness).
I've commented on this (citing Prof. Volokh as the originator of the response) below and more generally here.
[BTW, Prof. Volokh and I both feel the "evolving constitution" is a crock of BS. The very provision for amending the Constitution (with its requirements of supermajorities in both houses and in the States) indicates that the framers intended that the original agreement be changed only by a formal agreement, indeed a near-universal consensus of Americans.]
[Another BTW: under the "evolving constitution," would not the Confederacy have had a solid argument that even if the original Constitution did not permit withdrawal from the Union, by 1860 it had "evolved" to do so? There, they at least had (1) substantial ambiguity as to whether the Constitution permitted withdrawal (as I recall, Robert E. Lee at once point argued that it didn't allow, and Lincoln at another had argued that it did -- things don't get more ambiguous than that) and (2) they had the formal acts of States and people in conventions taking that view. That's a lot more than rub your belly three times and decide whether you individually think the Constitution has "evolved" into a different wording.]
Permalink · Gun manufacturer liability
FLA bill introduced regarding gun confiscations during emergency
This in from United Sportsmen of Florida:
FOR IMMEDIATE RELEASE Contact: Bill Johnson
October 25, 2005 (321) 984-4848
REPRESENTATIVE MITCH NEEDELMAN FILES LEGISLATION TO PRESERVE CITIZENS’ RIGHTS DURING EMERGENCIES
TALLAHASSEE - Representative Mitch Needelman (R-Melbourne) today announced the filing House Bill (HB) 285 to preserve the right of citizens to lawfully possess weapons during an officially declared state of emergency.
“Recent events in the New Orleans area during the aftermath of Hurricane Katrina demonstrate that citizens’ right to keep and bear arms are especially important during a state of emergency,” said Representative Needelman, a retired State Law Enforcement Officer. “The very basis for the Second Amendment is to empower citizens with the right to self-protection-and when is self-protection more critical than in a time of disaster?”
HB 285 clarifies the authority of the governor during a declared emergency by asserting that “nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed.”
The New York Times reported in early September that legally possessed firearms were being confiscated from law abiding citizens, quoting the superintendent of police that "only law enforcement are allowed to have weapons." A Louisiana state statute allows the chief law enforcement officer to "regulate possession" of firearms during declared emergencies.
“HB 285 will ensure that the unconstitutional stripping of citizens’ rights does not occur during emergencies in Florida,” said Representative Needelman. “We have an opportunity to reassert the right to bear arms and avoid the clear violation that occurred in Louisiana.”
HB 285 has been filed for consideration in the 2006 Session of the Florida Legislature. The Legislature is slated to convene on March 7, 2006.
Permalink · contemporary issues
British gun laws and the Olympics
According to this report, the British are considering relaxing their handgun ban a bit, in order to permit London hosting the 2012 Olympic games.
Reminds me of a trip I took to the Olympic training center in Colorado (I think) perhaps ten years ago. The shooting sports were, well, rather specialized. A pistol event where you had to hit a number (5-6) targets in the least time possible ... so it shot a .22 shot, from a gun with holes drilled thru the upper surface of the barrel to keep down even that tiny recoil and rise. A "running boar" event (now actually a "running oval" out of fear of offending moslems, although I can't see where they would have objection to shooting a pig, just to eating or contacting it, and boars aren't really pigs anyway) where, since the target went left to right and right to left, there were two rear sights for each arrangement.
But the most starting sight was on the running track. A lady was running, and next to her a golf cart or something very like that was keeping pace. A hose like a vacuum cleaner hose connected to a face mask she wore. I asked what was going on, and was told that the cart housed equipment that would plot her CO2 output as she ran, so that they could optimize her speed. I thought this was going just a trifle far, on something that's supposed to be an amateur sport, after all. (A remark a friend made: they ought to go back to the original system, where there was one prize, for the best, and there was no reckoning by nation or city-state. The object is simply to find the best individual, in a very limited number of events -- I think six or eight -- and not to tally up 22 golds, 35 silver and whatnot bronze for some country. But then I suppose there wouldn't be that much advertising to sell...)
Disarming Mike Wallace?
That's the title of an entry in CBS's blog The Public Eye. It's the fallout of Cam Edward's raising the issue of Mike Wallace having been a speaker at a Brady Campaign fundraiser during which he went after NRA and Charleton Heston. The sorta-ombudsman blog takes the CBS assurance that they will consider Wallace's appearance and positions with regard to his future assignments as an assurance that he won't be reporting on the Second Amendment and related issues (which it isn't, but perhaps the internal bureaucratese means that).
Nelson Lund article on Bach v. Pataki
Prof. Nelson Lund has published an article on Bach v. Pataki.
I'm going by memory here, so I may make some mistakes, but the case involved a challenge to the NY Sullivan law in a particular context. The NY law only allows residents, and those with a principal place of business in NY, to apply for a gun permit. The challenge was under Art. IV's provision that no state may deny nonresidents the privileges and immunities of citizenship -- essentially, a State cannot discriminate (withhold privileges without a good basis for the distinction) against residents of other states. Note that in this case, even if a sheriff wanted to issue Bach a permit, had investigated him and was satisified that he was a proper permittee, the sheriff was forbidden to issue him a permit.
The Court of Appeals held there was no discrimination. It bought the NY argument that part of the permitting process is keeping tabs on permit holders, and that's harder to do if the person is from out of state. I felt it an example of "gun cases make bad law," to paraphrase the old saying about hard cases. If the state law had involved forbidding nonresidents to apply for the bar, or medical licensing, and the argument had been "we've got to be able to keep an eye on attorneys and doctors, and it's harder to do that if they live elsewhere," the law would have been bounced in a heartbeat. And note that a nonresident *can* get a permit -- so long as he or she just works in NY. So you can have two next-door neighbors in New Jersey, and one can get a permit, because they commute to NY, and the other cannot, because they work locally.
More on Brazil, from the BBC
The BBC summary of the Brazilian referendum is ... strangely suggestive of US debates on the gun issue.
The antis campaign " was heavy in celebrity razzamatazz, and light in penetrating argument." Its political sponsors were dealing with accusations of official corruption. When the opposing campaign heated up, many started waffling.
The pro-gun side "portrayed the referendum in terms of civil rights, claiming that the government wanted to take away the right of people to choose how best to defend themselves," and argued that "criminals do not buy guns legally in shops, where customers are subject to strict background checks." The net result, they submitted, was that the law would not disarm criminals, but would stop honest citizens from defending against them.
I think I've seen this debate somewhere before...
CCW permit problems in Nevada
Vin Suprynowicz's latest column recounts problems with Nevada CCW permits. One of the benefits of such a permit was ability to buy a firearm from a dealer without waiting for, and paying $25 for, a background check. That benefit has been terminated. BATFE terminated it, apparently, because (1) some sheriffs were allegedly issuing permits without running a background check (I say allegedly because they could not cite a case of this happening) and (2) the permits last five years, so the agency was concerned a person could become a prohibited buyer and still have the permit.
Permalink · contemporary issues
Brazil's gun ban goes down bigtime
Reuters reports that the vote in Brazil lost by 64-35%. ""We didn't lose because Brazilians like guns. We lost because people don't have confidence in the government or the police," said Denis Mizne of anti-violence group Sou da Paz." How about both reasons?
Via Instapundit, which has a great roundup, including Dave Kopel's note that this represents a stunning repudiation of the international gun banning movement.
Brazilian gun ban debated
Sundries has some translations of Brazilian blogs debating the gun ban referendum. For those of us who don't read Portugese, this is quite handy. She also observes turnout will likely be high, since voting is mandatory in Brazil: failure to cast a ballot can mean fines or trouble with your passport!
Rehnquist's legacy
Over at Liberty, Timothy Sandefur has thoughts on the Rehnquist legacy. Which, he believes, is not much. He argues that the Rehnquist Court started out well, on a course of reviving federalism and property rights, then the trends were rolled back. A third area, protecting state sovereignty, survived better, but the problem is that cuts as often against individual rights as for them. There (and I think this is VERY preceptive) the problem was that Rehnquist was indifferent to individual rights, and thus failed to allow for the assumption of Madison and other framers that federalism was not an end in itself, but a means of creating a federal-state tension that would protect invididual rights.
He has a very interesting overall observation. There is serious division in the Court (of which vitrolic nomination processes are but a symptom), and it is a fundamental division or divisions. Is the written constitution a binding document, or just a guide (together with european law and whaterever else) for judges in achieving enlightenment? Are property rights real, or just a matter of whatever governments choose to allow? "This is a serious problem because a constitution is written for people of fundamentally shared views. Although people in a political society will always differ on particulars, no society can long exist without a core of deeply shared principles, which make the differences small by contrast."
Canadian govt considering suing gun mfrs
The Toronto Star reports that the Ottawa government is considering suing US gun manufacturers. (If link doesn't work, go to Star and hit search button for Ottawa and sue. It's free subscription, but I get tired of the process. Relevant portions of the article are in the extended entry.
This would pose some interesting choice of law problems -- esp. since it would have to be a suit under Canadian law (since US law now bars it), over the making and legal sale of a firearm in the U.S.. Not to mention questions of personal and subject matter jurisdiction. In any event, it'd been a good time for any US manufacturer to "disinvest" in anything Canadian.
[Hat tip to Don Kates]
Continue reading "Canadian govt considering suing gun mfrs"
Permalink · Gun manufacturer liability
Festival of Cordite is up!
Festival of Cordite #35 is up! There's a link to the wierdest looking subgun you will ever see, but from the attached video it seems to have exceptional resistance to climb, whether fired from shoulder or hip. (The grip is behind the action, so that the barrel is roughly level to the firer's ring finger. The recoil thus comes straight back into the hand, or shoulder... although to my eye, it should "climb down," it seems to thrust straight back).
More on S.397
ISN reports the bill passed the House by 283-144 (just a few votes shy of 2:1). It'd earlier passed the Senate by 65-31, over two to one. In the House, 59 Demos crossed over to vote for it, while four Republicans crossed over against it.
The report notes: "One amendment would require gun dealers to sell each buyer trigger locks or gun safes for each handgun bought. Another would ban the possession of armor-piercing ammunition. Rand said her group would work with local advocates to examine the "exceptions to the bill" and move forward on the issue.
"The NRA and their followers are going to be very surprised at the large numbers of cases that survive because of the numerous exceptions," she told ISN Security Watch."
Here's the language of the bill, as passed. There may be exceptions which the antis can work around in some cases, but the armor-piercing statement is rather funny. Yes, Sec. 6 says it bans mfr and import of AP (NB--that is AP as defined in the statute, basically bullets whose entire core is a specified hard metal, as opposed to standard military AP, which has both lead and steel).
But that's merely a slight rewording of the existinglaw. For example, substituting "unless" for "except that this paragraph shall not apply to." Then there's an increase in the mandatory penalty for use of such AP in a crime. (Since, so far as I can find out, no one has ever been prosecuted for such, for the reason that no one has ever used it in a crime, this has all the practical significance of imposing mandatory imprisonment for use of a dirigible in a drive-by shooting).
Then the AG is to conduct a study of whether a uniform system of testing bullets against body armor is feasible. He can't outlaw anything, just study the question. And since he is required to consider different barrrel lengths and loadings, and rifle rounds, I rather suspect the result will be "are you kidding?" Unless maybe "uniform system" means buy 400 samples of armor, shoot at them, and write a check next to any load that penetrates. What's uniform about that I cannot see. (PS: if anyone from the AG's office is reading this, send me 400 samples, a hundred or so guns, and lots of ammunition, and I'll do the test for fre... for a modest fee proportionate to the extremely complex physics involved.)
Permalink · Gun manufacturer liability
More on Meirs
Over at the Volokh Conspiracy, Todd Zywicki has some insights. To sum it up:
The conservative side split reflects a certain split between electoral-oriented conservatives (the religious right, etc.) which is content with a Justice they figure will vote their way, and the non-electoral conservatives (Federalist Society, etc.) who see legal change as a long-term change in ideas, and thus favor judges who have won their spurs, intellectually speaking, in conservative legal thinking. For the former is -- if it works, you get the 5-4 you need, don't complain. Besides, someone with well-established conservative credentials is going to catch flak for them. For the latter is --a person who can change patterns of legal thinking (on the Court and elsewhere) is more valuable than one more vote, and one without an established legal philosphy is more apt to shift leftward later in their career.
Another insight: under a bipartisan agreement worked out, Judiciary Committee cannot refuse to report out the nomination. It goes to the Senate floor no matter what. On the other hand, a negative vote and recommendation against (or even a tie and no recommendation) will shrink odds of confirmation massively.
A third: with a nominee like Roberts, little things tended to be ignored. But with one lacking many of his attributes, little things come up. No one would have worried about typos or sloppy wording with Roberts, but they're already pointing out those in her documents. Once a theme gets established in the media (Pres. Ford's clumsiness, Dan Quayle's cluelessness, although he really was clueless), that's all you'll hear (because writing stories on that takes so little effort).
A fourth: people who have heard her speak are worried about the confirmation hearings. And given the situation, her hearings are going to be critical. Previous Justices faced a lot less partisanship. Roberts faced it, but had sufficient credentials to where it didn't all hang on the hearings.
Permalink · contemporary issues
Brady Campaign vows suit against mfr protection bill
The Brady Center has announced it will file suit over the gun manufacturer/dealer protection legislation.
I can't see a broad challenge. Brady and suchlike places have pushed the legislation that pushed the envelope on Congress's powers over interstate commerce (somehow, having an assault rifle or other designated gun in your closet is a matter involving interstate commerce), and this law involves commerce far more clearly than any of those. Specifically, it involves protecting commerce from state actions, which is at the very core of the commerce clause power.
One possibility might be the claim that cutting off lawsuits after they were filed is a violation of due process, a deprivation of "property" without due process. I haven't done much research there, but it'd at best rescue the lawsuits already filed. Given the the vast majority of ones filed to date have lost anyway, that wouldn't be much of a victory.
Permalink · Gun manufacturer liability
Referendum on gun sales ban in Brazil
The Christian Science Monitor is reporting on the Brazilian referendum to limit (the article is unclear just how, but significantly) gun sales. It sounds as if gun sales would be limited to hunters, collectors, etc., and those with a stiff registration fee and paperwork requirements.
The article reports the polls are going back and forth, starting with a big majority for "yes" and now with a majority for "no."
Interesting notes: Brazil's population (122 million according to this article, 162 million reported elsewhere) is somewhat under a third that of the US, and its estimated gun density (17 million) is somewhat under a tenth of ours. Yet its homicide rate is twice ours (and the article notes, Venezuela's rate is higher. That's just south America -- as I've noted, all the former Soviet republics have much higher homicide rates than the US, a fact not apparent when they were USSR, since the Soviet government deliberately under-reported. I think the claim that the US has an unusually high homicide rates is steadily failing.
[UPDATE: The Mercury interviewed Brady Campaign on it. It describes the ban as "banning the sales of guns and bullets to almost all civilians." It then reports: "U.S. gun-control advocates could use Brazil as a test case for tighter laws, although not a total ban, said Peter Hamm, a spokesman for the Washington-based Brady Campaign to Prevent Gun Violence, which advocates tougher gun restrictions."
(1) Once again, Brady shows its only real agenda is "anything that restricts gun ownership" -- including in this case complete or near-complete bans on rifles and (2) in light of this, its support for the DC ban, etc., Brady will find it harder and harder to argue that it only favors "reasonable limitations" on handguns.]
Gun Mfr. liability protection act
Here's the Senate text, which I gather is what the House passed today. And here's Dave Kopel's take on the statute, via the Volokh Conspiracy.
Interesting language in the findings and purposes section:
"SEC. 2. FINDINGS; PURPOSES.(a) Findings- Congress finds the following:
(b) Purposes- The purposes of this Act are as follows:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.....
....
(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment."
Prof. Volokh has made the point that those who argue for an "evolving" or "living" constitution have a serious problem with just who judges the evolution. If the people -- the majority of the US believes the right to arms is individual. If the Congress -- it has before enacted statements that the right to arms is individual (Freeman's Bureau Act in the late 1860s, the Firearms Owners' Protection Act in 1986, now this). If States -- all State constitutional movement for decades has been toward clarifying an individual rights understanding. So even if we hold to an "evolving" constitution, it has evolved toward stronger individual rights understandings. Unless, of course, the "evolving" position becomes so obvious as to admit "To hades with the American people, Congress, and the states -- it's 'evolving' in the minds of judges, and that's what counts."
The reference to the enforcement clause of the 14th Amendment (which says Congress may protect the rights guaranteed, by appropriate legislation) is very interesting, too. Don't have time to look it up, but as I recall there was some caselaw suggesting that enactments pursuant to the enforcement clause have special authority in interpreting what rights are guaranteed under the amendment. If so, this might some day carry some weight, since it ties the 14th rather specifically to buying and owning ordinary, individual, firearms.
Permalink · Gun manufacturer liability
Meirs, guns and the Second Amendment
Dan Gifford, a friend and journalist, has been trying to run to ground reports on Harriett Meirs being (a) a gunny and (b) pro-second amendment. So far, not much luck.
(a) No one can confirm that she has held a CCW permit. No one he has been able to talk to in DC can confirm, deny, or seems much to care. The White House public affairs office, in particular, said they had no knowledge on it nor did they know how to find out (maybe ask her?) Sen. Feinstein's office said that she might not be interested in asking about it, since , um, there was this little issue about the Senator herself having a CCW permit...
(b) Indications are that the Second Amendment will not be an issue in the confirmation hearings. He spoke with a Senate Judiciary Committee staffer, and "She says there is nothing on either the original or the revised Committee background questionnaire given Miers that asks anything about firearms nor will there be because it's just not an issue. She said individual senators may ask Miers during the confirmation hearings whether she carries a gun and other related questions, but she has heard nothing about anybody doing so."
Permalink · contemporary issues
Gun mfr protection bill passes the House
The House has passed the gun mfr. liability protection bill. Since it already passed the Senate, it now goes to the president for signature (and I gather there is no risk of veto, grin). Clayton Cramer remarks on claims that this makes the firearms industry "unregulated."
[UPDATE: the Library of Congress webpage indicates the House passed the Senate bill S.397. I should say suggests. A resolution calling for consideration of the Senate bill passed on 10/17, and then H Res 439 passed on 10/18, providing for the same.
Of course, you never really know until you see the final language. Sometimes the House will, just because it wants the final act to be a "House Bill," take a House bill, strike all its language, insert the Senate-passed language, and pass that. That way the final legislation is labelled as having been a House bill. Strange things happen in Congress.
Permalink · Gun manufacturer liability
George Mason U's secret is out
Over at the Volokh conspiracy, Todd Zywicki notes that GMU's secret is now revealed: universities open to conservative scholars can easily poach first-rate talent.
(If I remember correctly, GMU's law school was only accredited in the late 1970s, at a point when my alma mater, Univ. of Arizona, was top-tier. I recently looked at the US News listing of top 100 schools. GMU made it, U of A did not.).
Permalink · contemporary issues
CEO of Brady Campaign resigns, citing stress of losses
ENOUGH TO MAKE YOU QUIT? For Gun Control Advocates, a Losing Streak in Congress
By Daphne Retter, Congressional Quarterly Staff
CQ Today
October 19, 2005
Congress may decide in conference to ease District of Columbia gun restrictions (H.R. 3058). The House will vote Wednesday on shielding gunmakers from liability suits (S. 397). And last year, Congress let the assault weapons ban (P.L. 103-322) expire.
It's enough to make a gun-control advocate quit.
"It's not an easy job to get up every day and duke it out with the gun lobby," Michael Barnes, president and CEO of the Brady Campaign and Brady Center to Prevent Gun Violence, said Tuesday, "but it's very important."
Barnes resigned this week.
He conceded that his side of the gun debate is faring poorly on Capitol Hill, but said that's not the whole lobbying picture. "In many states throughout the country, things are moving in our direction," he said.
AZ bar journal article on Sandy Froman
The cover story of the Arizona Lawyer is devoted to Sandy Froman, NRA's president, and a fellow Tucson attorney. It's quite a favorable article.
Permalink · contemporary issues
Federal judge strikes down a NY gun show limit
The Rochester Democrat and Chronicle reports that a District Court has stricken a part of the NY laws regulating gunshows. The statute in question required that "sellers" at a "gun show" perform background checks on purchasers. The statute had several definitions of "gun show," and the judge struck one that said it was any event hosted by organizations devoted to shooting or firearms collecting. (The suit does not affect the alternate definitions, such as a meeting where 20% of exhibitors have guns for sale).
The constitutional problem was that the definition would include gun club meetings and such, and I gather the requirement to do a background on a "buyer" didn't say buyer of a gun. So it would be forbidden for gun clubs to sell anything (including a meal) at a meeting without performing a background check on the buyer.
Those who like sausages and law should not watch the messy process of either being made....
Permalink · contemporary issues
NPR on guns and Hurricane Katrina
NPR has a segment on guns and Hurricane Katrina. The webpage links to audio files (RealPlayer & Windows) and to related stories.
Permalink · contemporary issues
Bill to allow WWII trophy title IIs
HR 2088 is a bill which would allow WWII vets and their heirs to possess certain war trophies and DEWATs (deactivated war trophies).
What prompts the legislation is that during WWII, commanders were authorizing soldiers to own and take home war trophy guns, including machineguns. Many of the vets didn't realize that such a written authorization doesn't get them around the National Firearms Act; they weren't lawyers, were in war, and had a letter from their commander authorizing them to take the gun home, and figured that covered it. As a result, there are a considerable but unknown number of MGs out there where the owner thinks everything is legal, and it isn't.
In a September 22, 2005, letter, Representative John Boozman (R-Ark.) requested DOJ Inspector General Glenn Fine to investigate and tell him "which documents ATF currently recognizes as entitling World War II veterans, and/or their lawful heirs, to legally possess War Trophy Firearms, and to legally possess DEWATs." Rep. Boozman made this request as Chairman, Subcommittee on Economic Opportunity, House Committee on Veterans Affairs.
[UPDATE: I'm told that a number of these vets or their heirs have the written documentation showing that their commanders authorized them to bring the firearms home.]
Permalink · National Firearms Act
C-SPAN poll on gun mfr liability protection.
CSPAN has an online poll on whether Congress should pass gun mfr liability protection.
Permalink · Gun manufacturer liability
Ky newspaper picks up on the "flea market loophole"
The media once again goes out with a story that repeats whatever an official wants to tell them. In this case, an ATFE agent saying that (1) lots of criminals buy guns at flea markets (last study I saw indicated a bit over 1% do, the same as with gun shows) and (2) they're driving from NY to Kentucky to get around NY's gun laws.
As to the latter -- if a criminal is willing to drive from NY to KY to get a gun, you probably aren't going to stop him from getting a gun by imposing a few more rules. He can probably find locally stolen ones much more easily. I note the photos of the flea market show rifles, not handguns, which tallies my experience with such.... a fair number of rifles, a few handguns, and those largely old revolvers, H&R .32's, that manner of thing. Which rather rules out a profit even for someone intent on buying a load to sell illegally.
Permalink · contemporary issues
FEMA reconsidering gun ban
The Seattle Post-Intelligencer reports that FEMA is reconsidering its gun ban in refugee parks. FEMA had established a mobile home park to house refugees, and announced that no resident would be permitted to possess a firearm. It now states that, in light of NRA and SAF threats to sue, its attorney are reconsidering this.
Permalink · contemporary issues
Another "this is pitiful" moment
The antigun Violence Policy Center has two themes this month: (1) getting the Washington Redskins to withdraw from an NRA shooting event and (b) the terrible security threat posed by .50 caliber rifles (which have never yet been used in a single offense; the article of course being illustrated by an arabic-looking fellow with a Soviet .51 caliber machine gun.
Ah, for the days when the gun control debate was over halfway serious issues!
Geneaology of the Second Amendment
I was doing a bit of work on the documentary, and discovered a few facts about the Second Amendment's wording that had somehow escaped my notice over the last, oh, 30 years (I published my first law review article on it in 1975).
The immediate model for the Second Amendment is the bill of rights demands lodged by the Virginia ratifying convention (1788). I'll get back to that in a moment, but the choice of the VA demands was logical. They were the broadest guarantees, and, having been adopted with minor wording changes by New York and North Carolina, obviously had wide support. But where did the VA convention get its wording? I don't think they borrowed it from the earlier ratifying conventions, but rather went back to State bills of rights.
PA (1776) had guaranteed: "That the people have a right to bear arms for the defense of themselves and the state."
MA (1780) broaded this by adding "keep and" but narrowed it to for the common defense: "That the people have a right to keep and bear arms for the common defense."
VA (1776) made no express mention of a right to arms, but stressed the militia: "That a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state."
So the VA ratifying convention simply took the MA declaration (broadened by "keep and bear"), and chopped off the narrowing "for the common defense." Then it stuck in semicolon and attached the VA provision. Both these cut and pastes were literally word for word. The VA ratifying convention request read: "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 defense of a free state." [BTW, the punctuation differences are immaterial: no photocopy machines back then, and people copying a statement often punctuated as they pleased. Thus there are "official" copies of the Second Amendment with one and with three commas]. Note that the VA drafters used the broadest existing statements of both right to arms and militia importance. Example: take MA's right to keep and bear rather than PA's earlier to bear, but chop off MA's narrowing "for the common defense."
When Madison drafted up the amendment, he took the VA ratifying language direct, and added a couple of clauses: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person..."
The First Congress took his idea, cut out his additions (well armed and and the conscientious objector clause), thus taking it back to the VA language. [The only evidence as to why consists of arguments that the States should define conscientious objector status, lest it give Congress too much power over the militia]. It then reversed the order of the clauses, changed country to state (presumably because it was the best security of free governments, state and federal alike -- and note "free state" was what the VA 1776 declaration had used) and changed "the best security of" to "necessary to." (The House debates indicate the last was done because "best security" suggested there were other not-quite-so-good securities, and House members wanted it clear the militia was absolutely essential).
Essentially, the Second Amendment then became the VA ratifying proposal, with the sole change that the order of clauses was reversed, and the militia was said to be "necessary" rather than proper, natural and safe.
Here I point out that the MA "for the common defense" language got a second try. The Journal of the First Senate shows that someone moved to add the language back into the Second Amendment -- and it was voted down.
Permalink · Second Amendment wording
Women going for right to arms -- in Kashmir....
From the Middle East Times:
"At least 30 Muslim women in the disputed region to the north of India and Pakistan have constituted a separate all-women Village Defense Committee (VDC) and are operating with the Indian army in the forested mountains of Surankote in the Poonch district bordering the Pakistani side of Kashmir to fight militants."Now militants do not dare enter our village," said 18-year-old Nishat Bee, the youngest member of the group. Her companion, however, corrects her by saying, "In fact militants have not been this way since we picked up guns against them."
On a visit to the twin villages of Marah and Kulali, one finds tall, slender Muslim women sporting rifles on their shoulders while grazing cattle alone in deep forests or standing on top of the roofs of their homes to keep a watch on militants.
"I am proud to fight a Jihad [holy war] against marauders who have cheated us of our dignity and honor," says Shamima Akhter, the 30-year-old commander of this particular women's group. ....
The foundation of this first women's VDC goes back to March 2003, when local Muslim priest Mir Hussain was killed by a group of mainly foreign Lashkar E-Tayyaba militants when he tried to stop the rape of his wife.
The priest's brother, Fazal Hussain, returned from the Gulf where he had been working, and with the help of the Indian army constituted the first ever-Muslim village committee in the border district of Poonch.
This group helped the Indian army destroy the biggest militant hideout in the famous Hill Kaka bowl in the mountains of Surankote in July 2003. At least 150 foreign militants were killed in the operation.
To avenge those killings, a Lashkar group in April 2004 attacked Kulali village and killed 14 women and children while the men were out on an operation.
Later, in June 2004, the militants executed another attack, which was repulsed by a woman, Khatoon Begum, who had learned to use a 303 Rifle from her son. Although she died in the attack her act helped save at least a dozen members of her family from Islamic guerrillas.
"Khatoon Begum's daring act lead to the foundation of all Muslim women VDC. We were supported by our husbands and fathers and thus trained ourselves in the operation of 303 rifles, SLRs, grenade throwing and other military aspects of how to react and repulse a militant attack", stated another women fighter, Shahnaz. "
Hat tip to Dave Kopel, on the Volokh Conspiracy.
Mike Wallace at Brady Campaign fundraiser
Cam Edwards of NRA News picked up an interesting story: news anchor Mike Wallace speaking at a Brady Campaign fundraiser (appropriately held at the French Embassy). He parodied Charlton Heston, whom he described as the "self-righteous enemy of the Jim and Sarah Brady Bunch," and announced he'd made a $250 donation to the Brady Center.
We all know there's a certain media bias at work, but you'd think they'd be less obvious about it....
Edwards sent email on it to CBS's The Public Eye, which I gather is some manner of ombudsman blog, and here's their response.
TSA opinion on gun seizures at NYC Airports
There have been some problems with folks transporting firearms to NYC airports and getting arrested for violating the local gun laws (most recently, a bodyguard for Michael Moore was busted). I even heard a report of someone getting nabbed who was merely connecting in NYC -- due to a flight delay, they missed the connection, and for some reason had to reclaim their baggage and check it in a second time.
The Department of Justice has written a letter to Rep. Don Young, stating that their position is that such arrests are barred by the Firearm Owners Protection Act, 18 USC 926A. That section gives legal immunity against state law, provided the person is passing thru the state while going from an area where he can own the gun, to another area where he can own the gun, and (if in a vehicle) the firearm is unloaded and locked in the trunk or other such storage area.
Note that (1) TSA can't give orders to NYPD, so some risk remains, but I suspect almost all of these cases arise from TSA employees calling NYPD; (2) the TSA position might expose, or increase exposure of, NYPD to civil liability if it keeps it up.
Hat tip to Joe Olson and NY State RIfle and Pistol....
Permalink · contemporary issues
FAQ on Texas CCW permits
Here's a FAQ on Texas CCW permits.
UPDATE: Rudy sent the following comment, which got blocked because the spam filter was mistakenly set to block "texas" rather than a certain poker game which contains that word. Not to say spam filters are necessary in this operation, but in the hour or so that lapsed between his comment and my resetting the filter, the filter caught 56 spam postings....
I noted in this FAQ a concern not only with Texas law, but that of every state with a shall issue, the cost. They note that an indigent or poor person making less than $7,470 will only be charged $70 dollars for the permit. But Wait, there's more. The cost of fingerprinting is $10. You will also need photographs and pay for a training class. So If you are poor, the cost to you to have the ability to carry concealed is the choice between Food, Clothing, or a permit. What shall I buy this month? It Sounds a little like paying for protection to me.
It makes you appreciate the right to keep and bear arms over the privilege of carrying concealed all the more.
Semper eadem,
Rudy DiGiacinto
Founder &c.
www.virginia1774.org
Permalink · contemporary issues
Barone article on politics
Michael Barone has an interesting column USNews.com, on the core problems facing the Democratic Party. His thesis is that there are more self-identified conservatives than self-identified liberals, with the result that, to win, a Demo has to be more conservative than a Republican has to be liberal. The Demos by and large do not understand this, and think the remedy for their ills is to "energize the base" or express themselves better. But energizing the base is taken to mean stir up the left -- which just puts them in a worse spot. Nor will demographic changes save them, since many hispanics, and a fair proportion of African Americans, are in fact conservative.
More on Miers and guns
AP is reporting that Harriett Miers owned a .45 revolver, for self-protection, but is not now a Texas CCW permit holder (they can't determine whether she was ever one, since records of present permittees are releasable, but those of past permittees are not).
Permalink · contemporary issues
Romanian self-defense
Clayton Cramer reports an interesting newspaper report from Romania. It reports a defensive gun use, and also that the country has adopted a version of the "make my day" law, with a legal presumption that shooting a burglar is self-defense. Clayton also suggests that some European might want to start a Euro version of his civilian self-defense blog.
California bills and veto
According to the Brady Campaign, Governor Ahnuld has vetoed a bill to require dealers to keep ammunition under lock and key, and signed two more. One would require dealers to verify age (the age restrictions are apparently unchanged, 18 for rifle and 21 for handgun), and the other authorizes arraignment judges to forbid domestic violence defendants to own arms (i.e., to forbid possession by a person charged with, but not found guilty of, the offense. So much for innocent until proven guilty).
Permalink · contemporary issues
Armenia and firearms laws
Armenia Liberty reports an embarasment to the country's Prime Minister. "Under Armenian law, citizens can not possess any firearms without police permission which is supposed to be given only in exceptional circumstances." However, the Prime Minister has given out about 500 guns as presents, and one was used in a crime (a mayor shot a rival). Their arms laws are sufficiently tight that the PM's 500 presents are "one of the easiest ways of obtaining" a gun.
Just out of curiosity, I checked Armenia's homicide rate. In 1996, it was a bit over 25 per 100,000 population. The US rate was 9.4.
Canadian homicides up
The Edmonton Sun is reporting that Canadian homicide rates are up 12%, Canadian police are finding that a majority of guns used in homicide are unregistered, and that the registration system -- whose tab runs over a billion dollars thus far -- appears to be a failure.
Great response to Brady's PR campaign in Florida
Patrick Semmens has come up with a great response to Brady's PR campaign, where they are trying to scare tourists away from Florida by claiming that its liberalized self-defense rules make things dangerous.
Patrick's response: he's created leaflets warning Washington DC tourists of how dangerous DC's gun laws have made the place. He says he may upgrade them. I'd suggest a quick reference to DC's murder, rape, and robbery rates, compared to some other jurisdiction (they're probably pretty bad even with regard to NY City, but it might be esp. fitting to compare them to those of the state of Florida).
Meaning of "well regulated"
From the Oxford English Dictionary:
REGULATED.
a. Governed by rule, properly controlled or directed, adjusted to some standard....
b. Of troops: properly disciplined (Obs. rare).
1690 Lond. Gaz. [London Gazette] No. 2568/ We hear likewise that the French are in a great allarm in in Daupine and Bresse, not having at present 1500 men of regulated troops on that side.
The qualifier has an obvious purpose. If the militia means all men capable of bearing arms, then any nation, free or unfree, has that. It would make no sense to say "Having a body of men capable of bearing arms is necessary to a free state." It probably would be, in the same sense that a nation needs a population, but it's also necessary to an unfree state.
I've found historical references that qualify militia going back to 1625, under Charles I, when he proposed "an exact militia" -- that is, one with more training and organization. I believe "well regulated" is used in one of the 18th century British militia laws, and it certainly was used in Whig writings of the time.
Permalink · Second Amendment wording
George Will on Voting Rts Act & why Demos can't win Congressional seats
George WIll has an interesting column in Newsweek on the subject. Apparently the easiest way to comply with the Voting Rights Act is to cluster your minorities into Congressional districts....that way, presumably, minorities have the best shot at getting elected.
But minorities are also largely Democrats, so the result is also to gerrymander Democrats into a few districts. He cites an example: in the last election, George Bush carried 51% of the popular vote but got a majority vote in 59% of the House districts.
Permalink · contemporary issues
Brady opposes trigger locks?
Below I comment on Brady Campaign and prohibitionism: I just found a rather concrete example. According to USA Today, the National Shooting Sports Foundation is on a campaign to give away free trigger locks, and has already given out 28 million of them. And the response of anti-firearms groups (which are supposed to be concerned about gun accidents, and have promoting laws requiring trigger locks) is--
Brady:
"Howard, of the Brady Campaign, also objects to federal funding of the program. The campaign's second phase received $30 million from the Justice Department.
"It should be a program where the industry pays for it," he says. "It just speaks to the incredible level of friendship between the gun industry and the government."
Violence Policy Center:
""Even the best child safety lock program is only going to prevent a very few deaths among very young children," says Kristen Rand, legislative director for the Violence Policy Center, a Washington-based group that supports a national ban on handguns."
Thought on Brady Campaign, etc.
Thought: faced with years of defeat, and no end in sight, the Brady Campaign has morphed (as it did once before, ranging out as Handgun Control Inc. into "assault rifle control" when the media began to drive that issue). Now it's becoming anti-self-defense, with its opposition to the Florida statutes liberalizing defense of the home (which statutes make no mention of handguns, guns, or any other implement).
What if the tide had gone the other way, and Brady had essentially gotten all that it claimed it was driving for? Oh, Brady Act, restrictions on gunshows, assault weapons ban renewed or even broadened. Would it have declared its objectives met, or moved on to national registration and permit systems (that it defends the DC handgun ban suggests not, and that an outright ban on handguns, at least, is seen as something praiseworthy). What then?
FoxNews has an interesting report on an organization faced with just that question. Mothers Against Drunk Driving succeeded in what seemed to be its ultimate goal: nationwide lowering of DUI levels from .15 to .12 to .08 (as the article notes, the average alcohol-related accident occurs at .17, and there's no credible evidence that lowering from .12 to .08 affects levels of those accidents). Plus, of course, stiff penalties -- here, mandatory jail, a thousand or so in fines, 90 days' suspension of license, for first offense, and much worse for second). As the article notes, MADD has moved on to pushing proposals to penalize driving after having consumed anyalcohol, if there is a child in the car -- penalties to include loss of custody or even termination of parental rights (i.e., you're legally no longer parent). Even its founder, the story notes, says it is becoming neo-prohibitionist.
Continue reading "Thought on Brady Campaign, etc."
A new vote count on the Supreme Court?
Below, I've blogged notes on John Robert's confirmation testimony, in which he displayed a remarkably detailed knowledge of US v. Miller and other Second Amendment caselaw, and Dave Kopel's discovery of a rather pro-RKBA writing by nominee Harriet Miers. [UPDATE: On the Volokh Conspiracy, Orin Kerr posts an email from a former White House attorney, who describes her, inter alia: "She also happens to be a gun-toting evangelical..."] [Another update, from Dan Gifford, who says it comes from a solid DC source: "FYI the White House folks told me she owns a gun and has a concealed carry permit."]
Assuming both are (as they appear to be) votes for an individual right, and that she gets confirmed, they join two sure votes -- Scalia and Thomas. The remaining question is -- is there a fifth vote out there?
As Dave Kopel pointed out to Bob Cottrol and I, as we were enjoying an overpriced lunch recently, the fifth vote might come from an unusual source: Justice Ruth Bader Ginsberg, traditionally ranked in the Court's liberal wing.
Justice Ginsburg dissented in Muscarello v. United States, 118 S.Ct. 1911 (1998) . That case concerned a 5 year sentencing enhancement for carrying a firearm during commission of a drug crime, and majority held that transporting drugs in a car which had a gun in glove compartment was sufficient.
She dissented, and noted with regard to "carry,"
"Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.""
That's rather thin as an indicator, but suggests she thinks the Second Amendment's "bear arms" = "pack your personal iron." Apart from suggesting an individual right, this puts her somewhat beyond some individual rights theorists, who see "keep" as clearly individual, but "bear" as perhaps military only.
Permalink · contemporary issues
FEMA suspends rescue team because it had an armed escort
The Arizona Daily Star reports that FEMA has barred the Phoenix Fire Dept search and rescue team from its actitives, because it brought along armed police officers (deputized as federal marshals) while rescuing about 400 people in New Orleans.
"After Hurricane Katrina, firefighters faced deployment to areas plagued by looting and lawlessness. Twice, Phoenix's team was confronted by law enforcement officers who refused to let them pass through their communities and told them to "get out or get shot," Gordon said.
The Phoenix team was told that its help was no longer needed after members of the group were seen embarking on a helicopter flight with a loaded shotgun while helping with the aftermath of Rita."
It says quite a bit about the situation in NO that rescue teams were refused entry by local law enforcement there, let alone threatened with lethal force!
Here's a link to the AP coverage.
Permalink · contemporary issues
Jim Lindgren on Mier's writing
On the Volokh Conspiracy, Jim Lindgren has a commentary on the nominee's writing style. "It has been said of Justice Blackmun that he realized his own intellectual limitations, leaving the hard job of drafting his opinions to his clerks, reserving to himself the easier task of substantively cite-checking what his clerks wrote. Unless Miers' writing has improved since 1992 (and it may well have), she might take a leaf from Justice Blackmun's book."
This might be the first nomination where Senators sought the nominee's internal memos from the last ten years, not to find out their position, but to examine them as writing samples.
Lindgren points out Randy Barnett's op-ed opposing the nomination, as a contrast -- the op-ed is much better written than any writing sample we now have from the nominee.
Thoughts: (1) this might be the ultimate stealth nominee, where the Prez. knows how they'll vote, but nobody else does (or at least, can prove it); (2) this might also prove the risk of such nominees, where the one assessing them is himself not exactly long on knowledge of constitutional law, and discussions between the two have focused upon policy matters. (I rather doubt they've had much discussion of when you can aggregate activity under the Commerce Clause or other interesting comtemporary issues).
Permalink · contemporary issues
Schumer's office having trouble with the law
It seems that Sen. Schumer's office is having a little trouble complying with the law. According to this article, two of his senior staffers got caught running an illegal credit report on Lt. Gov. Michael Steele of Maryland, a rising African-American, and Republican, figure who is expected to run for the Senate.
Violation of that statute is a felony, and the two staffers were suspended, then resigned, and the US Attorney is investigating.
"One would think a potential felony by staffers for a top Democrat — a case being investigated by the U.S. attorney's office in D.C. as well as the FBI — would at least get a paragraph of coverage somewhere between the grocery coupons and the obituaries.
Can you imagine the media firestorm if staffers for, say, Frist, had used Barack Obama's Social Security number to fraudulently obtain his credit report looking for stuff to derail his Senate campaign? Frist would have been before a media firing squad faster than you can say Bill Bennett.
Here's the story in Newsday, noting that the Democratic Senatorial Campaign Committee is paying for the staffers' attorney.
Nominee Harriet Miers and the Right to Arms
This time Dave Kopel, over at the Volokh Conspiracy, gets the scoop.
The nominee wrote a 1992 bar journal article referring to liberties that make for a free society, and listed them: "hose precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."
BTW, Michelle Malkin is very much down on the new nominee. The American Thinker makes, to my reading, a good response.
Permalink · contemporary issues
Heads-up for Floridia CCW holders
An email alert from United Sportsmen of FLA:
Here's your chance to speak your mind on proposed FWC (Florida Wildlife Commission) rule changes. There are numerous proposed regulations upon which you may wish to comment.
One involves your right to concealed carry on Wildlife Management Areas. It is item (10) 68A-15.004
You may access the comments section at the link below:
http://www.myfwc.com/commission/RuleChangeForm.htm
Permalink · contemporary issues
Calif. judge rules guns at gunshows may be expression & First Amend. protected
(Just got off plane, which accounts for nonposting for a few days). The San Francisco Chronicle reports that an federal district judge has ruled possessing firearms at gunshows may be expressive conduct protected by the first amendment. (Note this doesn't necessarily mean plaintiff win: the judge is merely ruling that such a right is arguable and cannot be dismissed out of hand). Details of story below...
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