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November 2005
TSA allows some sharp objects
CNN reports that TSA will Friday announce a rule allowing scissors up to 4" long, and screwdrivers up to 7" long, on airplanes. "
Now if they'd only accept my rule for preventing hijackings:
1. Pilots get .45s.
2. Passengers are encouraged to carry knives. BIG knives.
Any hijacker will be stuck in a plane with 100+ p.o.ed travellers whipping out bowies and K-bars, and a flight crew just waiting for the door to open.
Permalink · contemporary issues · Comments (2)
Kopel on anniversary of Brady
Over at Volokh Conspiracy, Dave Kopel has a posting on the 12th anniversary of the Brady Act, and some interesting comments on a story that Bill Clinton told to illustrate its importance. (He claimed that a firearms dealer friend of his had inadvertently sold a gun to an escaped mental patient, who used it in crime, and the friend was not over it to this day. Investigation indicated that the killer was not an escaped mental patient, did not buy the guns, and the dealer, supposedly not over it to this day, had died years before. Other than that, we may suppose, the story was true).
Permalink · antigun groups · Comments (2)
Alito's questionaire and gun cases
Orin Kerr notes that Judge Alito has submitted a 64 page answer to the customary Senate questions, so I read it for anything relating to firearms law. The only portion I could find was where he described his role in briefing cases with the Solicitor General:
"Dickerson v. New Banner Institute, 460 U.S. 103 (1983). The question presented in this case was whether firearms disabilities imposed by provisions of the Gun Control Act apply to a person who was convicted of a state offense punishable by imprisonment for a term exceeding one year but whose conviction was expunged. On behalf of the Director of the Bureau of Alcohol, Tobacco and Firearms, we argued that statutorily prescribed disabilities are not automatically removed by expunction of the conviction under a state statute. The text of the statute applies to all persons “convicted” of certain crimes, regardless of whether the conviction is subsequently expunged. Other provisions of the Act and related federal statutes reinforce this conclusion and show that Congress carefully distinguished between present status and the occurrence of past events.
The Supreme Court agreed in an opinion by Justice Blackmun. The Court accepted our argument that an expunction under state law does not alter the effect of a disabling conviction for purposes of the federal statute, finding that the interpretation was supported not just by statutory text but by the purpose of Title IV, which was intended to curb crime by keeping firearms out of the hands of those not legally entitled to possess them."
Dickinson was overriden by the 1986 Firearm Owners' Protection Act.
Permalink · contemporary issues · Comments (1)
Supreme Court textualism and Second Amendment
Just came across an interesting Supreme Court case, worth at least a cf. on the question...
Barnhard v. Thomas, 540 US 20 (2003) involved a 9-0 ruling (reversing a Circuit ruling by Judge Alito ... and I tend to agree with Alito's ruling, on non-textualist grounds) relating to Social Security disability. [The question was whether under the statute a formerly disabled elevator operator, now healthy enough to operate an elevator, could still claim disability on the ground that, if they are any elevator operator jobs left in the country, they could be counted on the fingers of one hand. For you youngsters, before they invented pushbutton controls, elevators required an operator, who sat on a little seat, and moved a lever to select the floor you asked for. I saw some of those in the Capitol 20 years ago, when it was a patronage job, but where you would find such a job today I cannot even begin to guess. So I'd side with Alito on practical grounds ... Congress probably would not have meant a person to be un-disabled, if the job they were suited for is one that no longer exists. But is is a 9-0...]
The Court notes:
" An example will illustrate the error of the Third Circuit’s perception that the specifically enumerated “previous work” “must” be treated the same as the more general reference to “any other kind of substantial gainful work.” 294 F.3d, at 572. Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, “You will be punished if you throw a party or engage in any other activity that damages the house.” If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house–for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact “damaged” the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity–hosting a party–that was most likely to cause damage and most likely to occur."
I see a parallel here in the Second Amendment. The framers recognized a right "of the people" to arms. In the prefatory clause, presumably stating a reason, they noted that a well-regulated militia is necessary to the security of a free state. Even if we assume that the same core interest underlies both provisions, we cannot disregard or limit the declaraton of the right.
Permalink · Second Amendment wording · Comments (0)
Plug for Cornell Univ. website
Just figured to mention (before using it in the next posting) that Cornell Univ. has a great great website on current and some historic Supreme Court cases.
If you go here you can sign up for email bulletins, which will email you the syllabi of all rulings, the day they are issued, and also useful previews of cases in which cert. has been granted or oral argument set.
Permalink · Supreme Court caselaw · Comments (1)
At the very least, Alito has the right enemies
Over at the Brady Center, the top three stories are about Judge Alito, or "Machine Gun Sammy," as they've taken to calling him.
Alito is also front-page news at the Joyce-Foundation-funded Violence Policy Center, where three of their four lead stories concern him (the fourth praises the San Francisco gun ban).
The Brady Center conveniently posts, at top right margin, a box where you can email your Senators. Just be sure to personalize the message!
I can see the reason for their upset. If a narrow view is taken of Commerce Clause powers, along the lines of Alito's dissent in the machinegun case, you never get to the second amendment. You don't have to get that far -- Congress never had the power to enact the law in the first place. That'd (probably) leave Congress with the power to regulate true interstate commerce. Require FFLs for interstate purchases, require FFLs to keep records, etc. But beyond that (viz., everything the antigun movement has sought since 1968, and all of their "boutique bans" on assault weapons, etc.), Congressional power is at the very least in serious question. So from their standpoint, Alito is a lost vote in almost all gun cases (replacing O'Connor, who was only a lost vote if the case involved a major conflict with State responsibilities).
And if a Court does reach the right to arms issue: in my experience, a jurist who is comfortable with guns is open to an individual rights view, and an open mind is all we need. The ones who are closed-minding are those who, at an emotional level, are frightened by private ownership of firearms. If Alito sees nothing disturbing about private ownership of full autos, it's probably safe to say he falls under the open-minded classification. So a probable outcome of him on the Court would be a vote both for narrow commerce clause powers and for broad right to arms understandings.
Permalink · contemporary issues · Comments (0)
Don Kates on international comparisons
Don Kates has an excellent article on international comparisons, at the Independent Institute. A few excepts:
"Anti-gun advocacy is built on decades of erroneous claims that the United States, with the world's highest gun ownership rate (true), has the highest murder rate (false). Russia’s recently disclosed murder rates since 1965 have consistently exceeded U.S. rates despite Russia’ ban of handguns and strict control of long guns. Since the 1990s Russian murder rates have remained almost four times greater than American.
.....
If more guns mean more violence, nations with high gun-ownership rates should have high murder rates. But two international studies comparing gun ownership with murder rates in 36 and 21 nations (respectively) found “no significant correlations.”
Anti-gun advocates never mention these facts. Nor do they mention all the European nations with high gun ownership rates but very low murder. Norway, with the highest gun ownership rate in Western Europe, has the lowest murder rate—far below England's. The only European nation that bans all guns, Luxembourg, has the highest murder rate (except for Russia): 30 percent higher than the U.S. and ten times that of gun-dense Norway. Holland, with Western Europe's lowest rate of gun ownership, has a 50 percent higher murder rate than Norway. Greece has much higher gun ownership than the Czech Republic but much less murder. Finland has 14 times more gun ownership than neighboring Estonia but much lower murder rates."
Permalink · non-US · Comments (0)
First image manip I've seen that sums up a constitutional issue...
From sacredcowburgers.com, a pic that sums it up.
Permalink · Second Amendment wording · Comments (3)
Waco
There have been a few comments about the Waco tragedy, in 1993. Just thought I'd mention that I have a raher large webpage on the subject, based on three years of Freedom of Information Act suits to get information relating to it.
Just one sample: the raid and initial shootout were supposedly justified because Koresh was a reclusive paranoid who never left the building and thus could not be arrested without a major invasion.
I got the ATF reports that showed what the ATF undercover agents in the "undercover house" (across the street from the Davidian place) had done on February 19, nine days before the raid.
They went shooting.
With David Koresh.
He carried the ammo, they had the guns (until they loaned him a .38 Super). Then they went back home to plan the raid on the fellow who never left the building.
I am not kidding....
[UPDATES:
1. I haven't had time to update the page in a year or so. The audio .ra files aren't working, and when I have a chance I'll figure out why. I also want to insert larger video files (the page was created years back, when EVERYONE had dial-up, and a 500 meg file was enormous).
2. On prying for the Feb. 28 videos ... after literally years of courtroom work, here are the results from the ground-based cameras:
a. Camera on tripod near the "radio van." Finally got it, but it shows nothing but a blurry image of a building maybe 300 yards away.
b. Camera mounted on telephone pole: ATF claims they can't find the tape.
c. Camera in undercover house: ATF claims it failed for mysterious reasons. Officially, it kept ejecting the tapes (apparently it was a videocam linked to a VCR) rather than recording, due to radio interference from radio van. Problems: (i) VCR remotes work on infrared, not radio signals; (ii) ATF tried to duplicate the event with potent radio signals and couldn't do so. My guess is that someone just removed the tape and "vanished" it.
d. On the side: still camera carried by ATF's PR officer. She claims she put it on a table in raid HQ and it vanished, together with the film. Gad -- a room full of law enforcement, and a thief sneaks in and takes it? Pretty brazen.... Assuming that the story is true, it'd be apparent that ATF realized, during and right after the raid, that evidence had better start disappearing, period.
Permalink · contemporary issues · Comments (4)
Second Amendment as an illustration
A thought just popped into my mind, aided perhaps by a rising ethanol level (which might cast some light upon the brain/mind differentiation, but I digress...). The right to arms for some reason (perhaps that it remains controversial, perhaps that it is an area where traditional liberal-conservative thought tends to reverse itself) is place where manners of constitutional interpretation are highlighted. To make some rough distinctions, we can posit:
Natural rights approach (perhaps the Originalism of the Originals?): individuals have certain rights, which are ascertainable by logic. Humans can reason and communicate, hence they have freedom of expression. The need to defend themselves (particularly if government fails to do so) indicates that self defense is the most fundamental of rights, and hence that there is a right to have the physical means of self-defense. This would have made great sense to the framers (remember that the bill of rights takes the rights as a given ... it does not proclaim that free speech or ownership of arms is now and henceforth a right, it says that Congress shall make no law abridging the first right, nor infringe the second, in each case presupposing the right in question) but wouldn't be an argument you'd make in court today. If you meant to win, I mean. Individual rights view here wins out.
Originalism (which can be split into original intent, what did the Framers mean by their writings, and original understanding, which did the American people understand when they ratified those results). A form of legal positivism, which implicitly treats the rights in question as created by the writings or the understanding. The meaning of a right, like the meaning of a statute, is derived from the thoughts and purposes of its drafters or the decisionmakers who validated the decision. Again, the individual rights view wins, unless one is willing to go to extraordinary lengths (i.e., be less than intellectually honest) to evade that result.
I don't quite know what to entitle a third approach. It is not natural rights theory, nor true positivism. I suppose it amounts to "there is no constitutional right where I do not approve of the result." Under that, collective rights may win out. I'd suggest that this flunks one core standard of constitutional interpretation -- the interpretative tool must yield results independent of the interpreter's policy desires. Otherwise (1) courts are indeed non-elected policymakers and (2) the constitution is no more than the passing and personal desires of a court.
There is a fourth approach, I suppose, that of the idea of an evolving constitution. Prof. Volokh, while rejecting this idea, points out that (a) if we look at how the Congress has viewed the right to arms, it has several times in legislation stated it is an individual right; (b) if we look at how States have viewed it, all changes to State constitutions have made it more clearly individidual; (c) if we look at how the people at large view it, all surveys show a large majority believe they have an individual right to arms. That leaves only (d) the socio-economic class that includes judges don't think it is individual, but this last class view is hardly something one can base an ethical view of the constitution upon.
There is the variant of this discussed by Prof. Amar, who notes that meanings of words change over time -- but he also notes that the meaning of "right to keep and bear arms" seems to have shifted, not toward a collective right, but toward an individual right (vide the fact that in the 14th amendment period, the phrase "bear arms," which sounds quite military, came to be used in a clearly individual right sense).
Permalink · Second Amendment wording · Comments (2)
Move to get more mental health records in Brady database
From AP:
"Not one of their names was in a database that licensed gun dealers must check before making sales — even though federal law prohibits the mentally ill from purchasing guns.
Most states have privacy laws barring such information from being shared with law enforcement. Legislation pending in Congress that has bipartisan support seeks to get more of the disqualifying records in the database.
In addition to mandating the sharing of mental health records, the legislation would require that states improve their computerized record-keeping for felony records and domestic violence restraining orders and convictions, which also are supposed to bar people from purchasing guns.
Similar measures, opposed by some advocates for the mentally ill and gun-rights groups, did not pass Congress in 2002 and 2004."
I was at a planning session (made public by the Federal Advisory Committee Act) for the Brady Act database back in the mid-1990s. The planning group even then was seeking to consolidate mental health records (they figured the VA records would be easy to get, state records much harder), domestic orders, renunciations of citizenship (small number of files, kept by State Department), etc. I found the thing rather appalling ... as was the general disinterest in the matter by "privacy" advocates. I'd have expected even antigunners among the last to alert to the fact that the Brady files cover all Americans, whether they own guns or not.
Permalink · contemporary issues · Comments (1)
Reports of audit of NFA database
By way of background, under the NFA the BATFE is charged with keeping records of the several hundred thousand licensed NFA firearms (chiefly full-autos, but also short barreled guns and some others). Going back to 1978, there have been complaints that the database is seriously flawed, there are licensed guns, probably MANY licensed guns out there that don't show up in the present database, and there have been intermittant reports of persons being raided, etc. who turned out to have complied with the law. (Back in 78 or 79, I dealt with dealer and collector Curtis Earl, who during a raid had agents stack up a pile of his inventory that their records showed had no proper registration. He went into his files, produced his copies, and every one of the firearms went back onto his racks).
From Eric Larson, who has keep pushing the issue these ten or twenty years:
In a letter dated October 21, 2005, the Department of Justice Office of the Inspector General (OIG) stated that the OIG will begin an audit of the NFRTR in late 2005.
Specifically, Deputy Inspector General Paul K. Martin wrote: "In response to correspondence we have received expressing concerns over the accuracy and completeness of the NFRTR, the OIG plans to initiate a review of the ATF's management of the NFRTR in late 2005." The letter repeats many of ATF's recent responses to questions about the NFRTR (and attributes them to ATF). But the letter also notably states that the OIG is "also aware of extensive correspondence, beginning in 1998 and continuing through the present, [alleging inaccuracies in the NFRTR] between the concerned individuals and the ATF, United States Attorneys' Offices, and the Department of the Treasury OIG, as well as several Members of Congress."
The lesson to be drawn here is the importance of involving your Congressional representatives in expressing your concerns about the NFRTR. It is obvious from this letter that the sustained objections to how ATF is conducting the public business have been heard, and will now be acted upon.
A copy of the letter is at the web site of the National Firearms Act Owners Association (NFAOA).
A huge "thank-you" is due to Mr. Cott Lang, who took the time to express his concerns to his Congressional representatives, as well as to the many other people I know who have worked hard on these issues, and involved their Congressional representatives as well.
Finally---I've said this before, and will say it again---the ATF is not immune to Congressional pressures and concerns, and at the end of the day the Congress can go a long way towards reforming ATF if it wants to. The "if it wants to" requires people who are willing to be part of the solution and not part of the problem. Be part of the solution by continuing to express your concerns to your Congressinal representatives.
The Department of Justice Inspector General has recently done some audit work involving ATF. Take a look at the NFAOA web site, under "Resources," for an example of that work---and imagine that kind of attention and diligence being paid to ATF's mismanagement of the NFRTR. It is likely going to be a whole new day for the NFAOA community.
Permalink · National Firearms Act · Comments (2)
Symposium on Raich (medical marihuana case)
Lewis & Clark Law Review has a symposium issue on Raich and the Commerce Clause. It's online, and contributors include Randy Barnett, Ann Althouse, Glenn Reynolds & Brannon Denning.
Permalink · Commerce Clause · Comments (0)
Move to sorta-repeal DC gun ban dies
The WashPo reports that the proposed limit on the DC gun ban (an appropriations rider) has been deleted from the bill as enacted.
Permalink · contemporary issues · Comments (3)
Video of ATFE expert examination
JPFO has released a video of a BATFE expert's examinaton of an alleged machinegun, and of the defense expert doing the same. The website doesn't give many details, but a viewer tells me that the ATFE showed how the rifle would fire (every now and then) in full auto, and identifies a ground-off piece of the bolt which he says converts it to full auto.
The defense expert shows then shows that the intermittent full auto fire is due to malfunction. The firing pin spring is worn and too short, and the firing pin defective, with result that the rifle occasionally slam-fires -- the firing pin is floating loose and can slam forward under inertia when the bolt closes. He points out that, in the FN-FAL rifle mechanism, the ground-off part that the ATFE expert singled out has no effect upon firing.
UPDATE: Publicola has viewed the video -- for some reason the spam filter blocked his comment, but I'll add it in the extended remarks below.
Continue reading "Video of ATFE expert examination"
Permalink · National Firearms Act · Comments (3)
Warning re viruses
Since I've got my address on several websites, and probably in many inboxes as well, I usually get the first wave of any email viruses. One started going around today, focusing on trying to get you to open a contaminated .zip file. Some of the emails are plausible, but some are rather amusing ... notices from CIA and FBI that they have logged you on "illegal" websites and ask you to open the attached zip file to see their questions.
Another variant is emails from gsa (General Services Administration), with different messages--you've been added to a database or mailing list, here's your password, did you lose my email address, etc.
Permalink · Personal · Comments (1)
Justice Breyer and Active Liberty
Just finished Justice Breyer's book "Active Liberty," and am thinking of writing a review. It's rare that we have this much insight into a Justice's thoughts (normally, we have to pick them out of opinions, covering narrow issues, and where the author had to accomodate the objections of up to eight other Justices).
The "Active Liberty" refers to what I suspect most of us would identify as non-liberty, that is the liberty of the government (seen as representive of the majority and hence the liberty of the majority) to make laws. Breyer thus sees "constitutional tensions," a two-sided affair with constitutional interests on both sides, in any constitutional case. To the extent that we rate a constitutional right as something especially weighty, something that is accorded weight beyond "there are good reasons to make this law," that tends to make the balance more level.
I'd suggest this levelling is not justified by history nor by good policy. It's clear from Madison's writings that the Bill of Rights was not seen as a broad array of commands, but as a narrow list of what were considered the clearest and most noncontroversial of rights. Madison didn't want the Bill tied up in a battle over details, or producing even more controversy. He worried that if religious rights were put to the test, they'd probably be narrowed (note that several states still had established churches and some had them into the 1820s). So the restrictions were narrow and carefully chosen. I'd suggest that they were intended, if not as absolutes, then as very close to the same. Yes, the majority, acting through the legislature, has its rights. But those end when the boundaries of the Bill of Rights are encountered. Which still leaves plenty of room for "active liberty."
As far as policy and changes -- the main change since 1791 has been the growth of governmental power, and at the federal level in particular. The federalists (including Madison at this time) were arguing that federal power was so limited that a bill of rights wasn't necessary... it might be appropriate for the more powerful state governments, but not for this new creature. You could hardly say that today. If anything, the changes suggest a need for a more vigorous protection of Bill of Rights liberties, not for their relaxation. Add to this the fact that the relation between the majority and the legislature has been steadily weakened, and with it accountability. Statutes as often as not prescribe only general policies and leave it to non-elected officials to decide exactly what the rules are to be. The officials themselves are not at all accountable to any majority -- your remedy if an unreasonable rule is imposed is to vote against the current president (who didn't make the rule and probably never heard of it) and elect a different chief executive (who can't unmake the rule, and likewise has never heard of it).
I can't help but wonder how Breyer is classed as part of the "liberal wing." His jurisprudence really hearkens back to Frankfurter, and maybe that's the answer. "Liberal" is of course an amorphous term. In the 1930s-40s it meant (in a judicial sense), "don't mess with the New Deal," i.e., with legislative powers. In that sense, Breyer would qualify. But during the 1960s-70s it also came to be associated with protection of civil liberties -- meaning for the most part, DO mess with legislative enactments and majoritarianism -- and in that sense Breyer is far from liberal.
Here's Gene Volokh's study of Supreme Court votes on free speech issues. Breyer comes in dead last in terms of backing freedom of expression. (Kennedy ranks No. 1, with Thomas in a tie for No. 2).
Continue reading "Justice Breyer and Active Liberty"
Permalink · General con law · Comments (0)
Amusing note on definitions
I've seen this in some state laws, but only now realized it was the case in Arizona... the legislature has managed to define "firearm" out of existence!
Arizona Revised Statutes, title 13, chapter 31, contains all the firearm law restrictions, including prohibited possessors, concealed carry, etc.. Section 3101 is the definition section, which applies to the entire chapter. Here are the two key definitions:
"3. "Explosive" means any dynamite, nitroglycerine, black powder or other similar explosive material including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes."
"4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive."
So firearm is anything that expels a project by explosive, but explosive does not include ammunition or gunpowder.....
{update: note that key is that gunpowder and ammo are not explosives. So a gun that shoots those is not legally a "firearm." A spud gun probably wouldn't qualify, either, unless the hair spray or whatever used to power it is considered an "explosive." A good argument could be made that, even tho it will detonate, it isn't, since the statute lists nitro, blasting powder, plastic explosive and other "similar" explosives, and hair spray vapor has little similarity there.
I've seen another definition of "firearm" somewhere in statutes -- that which expels a projectile by action of an expanding gas. Now, that would encompass spud guns, not to mention BB guns and airsoft guns. Maybe cork guns. But it's not the definition used here.]
Permalink · contemporary issues · Comments (6)
Record for criminal stupidity: robbing a gun store
Snopes has confirmed the story about a fellow who tried to rob a gunstore and went down in flames. Down to the details that he had to walk around a parked police squadcar to get in, found it full of patrons (including the officer), and threatened to shoot them all unless they complied.
(Some of the details were not confirmed. For instance, he went down with only four bullets in him, not 23. The officer was a better shot than that).
Permalink · Self defense · Comments (1)
Al-Zaraqawi may be spending Thanskgiving all over Mosul
There are reports that the terrorist leader was among the eight leaders cornered in a house who blew themselves up.
Never count a man dead until you've seen the body, and even then remember you may be mistaken. I suspect the present data isn't much more than (a) we were tipped he'd be there and (b) eight people there blew themselves up.
On the other hand, word that eight of the leadership disassembled themselves is cheering. One top dog can be replaced a lot easier than eight of the leadership.
Permalink · contemporary issues · Comments (0)
Don Kate's thoughts on self defense
The previous posting put me in mind of an argument Don Kates once made, relative to the legal doctrine of self defense.
Don observed that it evolved against a common law background where a person had an almost unlimited (and maybe completely unlimited) power to use deadly force to prevent a felony or apprehend a felon. Felonies were, after all, capital offenses, so using lethal force wasn't going very far -- the state itself would use lethal force if the felon was caught -the only question was whether the person was a felon. So any self-defense against a felon would be handled under this segment of the law.
That meant that the only time you considered self-defense as a legal defense would be in a conflict between otherwise law-abiding persons. A tavern fight, that manner of thing. In this context, restrictions such as "you must retreat to the wall" made some sense. There was a valid interest in defusing the conflict rather than escalating it, and retreat would often be available. (Note, in support of this concept, that at earliest common law self-defense did not mean a finding of innocence. Rather, the finding was guilty with the understanding that the Crown would issue a pardon. I seem to remember that by Tudor times it was almost automatic, with the court finding guilt, ruling that it was self-defense, and requesting that a pardon issue).
The problem, Don argued, was that with the narrowing of felonies, and of the right to use lethal force to prevent them or to hold a felon, the vast majority of defensive uses against criminals wind up drawn into self-defense, and held to the narrower standards which historically were only used in fights between otherwise law-abiding citizens.
Permalink · Self defense · Comments (0)
British gov't opposes liberalizing home defense
The London Telegraph reports that a Conservative MP is pushing a bill to broaden self-defense in the home, and the Home Secretary has come out in opposition.
The bill would change the standard of "reasonable force" into "all but grossly disproportionate force." As commentators such as Joyce Malcolm have pointed out "reasonable force" is construed by British courts as allowing almost no self defense. (She pointed one piece of government advice, to the effect that if you run into a burglar in the dark and bonk him with a crowbar, you will be put on trial but probably win. But if you hit him a second time, you are almost certain to be convicted. Note that even the first blow is predicated to result in a criminal charge. Where I live, the prosecution wouldn't waste time asking for a grand jury's opinion. If you killed the guy, they might bother the grand jury, just enough to get a "no true bill" so that they could say they asked for a second opinion, so to speak.
Hat tip to Dan Gifford...
Permalink · non-US · Comments (0)
Carnival of Cordite is up!
The latest Carnival of Cordite is up, with everything from pumpkin firing artillery (when a pumpkin-projector has a sixty foot barrel we can safely call it artillery) to a debate on mandatory sentencing. BTW, the host is urging all to vote for him in the blogger deck of cards. Do it, he deserves it for his work in this area!
Permalink · Festivals · Comments (0)
Kuwaiti gun prohibition
Over at the Volokh Conspiracy, Dave Kopel has a posting on Kuwaiti gun prohibition. The kingdom has a near-complete ban on all guns, and just doubled the penalty to ten years in the slammer. A major issue is the Kuwaiti resistance (to the Iraqi invasion of some years ago), which understandably does not propose to disarm, nor quite understand why its rulers don't trust it. [The kingdom seems to be a perfect illustration of what people of the founding period here foresaw: (1) absolute rulers must disarm their people; (2) they are then forced to rely upon a mercenary army, which (a) must be weak enough to where it cannot take over and (b) must thus be too weak to defend the state... or else be strong enough both to defend it and to take over, and, as Machiavelli put it, what reason is there for an armed man to obey a disarmed one?]
Permalink · non-US · Comments (1)
American Prospect on Alito
An article in American Prospect attacks Alito's dissent in the machinegun case. Not a particularly good attack, I think. With regard to the Lopez precedent, its argument is little more than other judges rejected the argument, and the medical marihuana case (decided years after Alito wrote) suggests that the Court didn't in 2005 view Lopez as that broad.
I do find one segment interesting: "In early August of this year, one month before the Roberts confirmation hearing, Judiciary Committee Chair Specter derided the "reinvigoration of federalism" in Lopez and other cases as "the hallmark agenda of the judicial activism of the Rehnquist Court" and a mere cover for "usurping Congress' authority."" (1) That says a lot for the Senate's respect for the Constitution when it conflicts with desired results; (2) it becomes rather obvious that even the view that the 'Constitution is what the courts say it is' is discarded the minute the courts say something that leads to an undesired policy result. In short, the question of constitutionality is increasingly becoming a question of how Congress can get the desired result of unlimited legislative power. (Except, of course, when the legislation in question involves abortion).
Permalink · contemporary issues · Comments (0)
British move to regulate reloading tools
Yorkshire Today reports that the British are passing legislation to restrict reloading tools and components:
"During Bieber's trial, Mr Justice Moses said it was "completely barmy" that the killer had legally bought a Dillon RL550 bullet press and re-loader from a Hertfordshire gunshop that he had used to manufacture thousands of bullets in a home-made weapons factory in a Leeds lock-up.
PC Broadhurst's mother Cindy Eaton – backed by the Police Federation and PC Broadhurst's MP, Batley and Spen's Mike Wood – launched a high-profile campaign in the Yorkshire Post for a ban on the unrestricted sale of bullet-pressing kits and primers – the essential mini-detonators which set off the propellant in a round.
Following Bieber's conviction, the MP called directly on the Prime Minister to change the law.
His pleas are set to come to fruition today, as MPs give their final approval to the Violent Crime Reduction Bill, which will make buying components subject to the same restrictions as buying firearms.
Clause 28 of the Bill will make it an offence to sell primers to anyone without a firearm licence and Clause 29 will ban cartridge and bullet presses."
Hmm.. (1) the killer in the case managed to get the gun despite the existing laws; (2) with regards the "slippery slope"... aren't the British ever going to get to the bottom?
Permalink · non-US · Comments (2)
Another carnival of cordite
Here's the latest Carnival of Cordite.
Permalink · Festivals · Comments (1)
SF gun ban brief
Clayton Cramer has a post on the San Fran gun ban, with a link to a brief filed by Chuck Michel and Don Kates in the matter (caveat: large pdf file). The brief appends a copy of the referendum.... and brother, is it one strange piece of legislation.
1. It bans all transfer of firearms and ammunition (rifle and pistol alike) within the city. This would include transfers by will, etc., so as rifle and shotgun owners die off, their firearms become contraband.
2. It bans handgun possession by residents of the city. A nonresident may still possess a handgun while in town (provided other CA requirements are met).
3. The ban on possession by residents applies to police officers, except when they are actually performing official duties.
4. The ban applies to pretty much everyone else, at all times. Which means it may be difficult to try a case involving a handgun. There is no exemption for court clerks to possess a handgun as an exhibit in a case, or for prosecutors or defense attorneys to pick one up during the trial. (On the other hand, there's probably no such exemption in the drug laws, but attorneys, judges, and jurors regularly "possess" heroin, meth and everything else in the course of a trial).
Permalink · contemporary issues · Comments (1)
Notes on Alito and gun control
Judge Alito's thesis advisor found a copy of his 1972 thesis. Not that that's terribly important (it was on the work of the Italian Supreme Court), but he told the Daily Princetonian:
""He is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I," Murphy said in an earlier email message.
"We, however, agree on other important issues, such as finding no constitutional barrier to bans on late term abortions and requiring spousal and parental notification of impending abortions."
Permalink · contemporary issues · Comments (0)
Off to AALS
Blogging will be light thru next Tuesday... I'm off to the American Association of Law Schools convention in DC.
Permalink · Personal · Comments (0)
Prof. Volokh on gun mfr liability protection
Slate ran an article accusing the gun manufacturing industry of buying legal protection, and Prof. Volokh engages in a butt-stomping contest over it. He wins, by the way.
Permalink · Gun manufacturer liability · Comments (0)
Brady Campaign on San Fran gun ban
The Brady Campaign has issued a press release proclaiming triumph: "The San Francisco referendum, Sarah Brady said this morning, "sends a very loud message from American urban voters. They are saying the gun violence problem is not going to go away if we don't do something about it. The extreme gun lobby worked very hard to try to defeat the measure, and they got trounced."
Uh... Brady's been trying to portray itself as a supporter of reasonable, moderate, gun laws. But it apparently regards a measure to confiscate all handguns, and forbid future transfers (purchases, inheritance, whatever) of rifles and shotguns as something only "the extreme gun lobby" would oppose... That seems a rather strange definition of "extreme" and "moderate." Unless... no, it couldn't be. I was about to say they were lying.
Permalink · antigun groups · Comments (2)
San Fran gun ban passes
Word is that the SF referendum on a city gun ban passed yesterday. It reportedly outlaws and authorizes confiscation of all handguns, and prohibits future transfers of rifles and shotguns. From what I've heard, it's in violation of the State pre-emption laws. NRA has announced it'll sue (see extended entry below).
Hint to anyone proposing a pre-emption statute, or want to put teeth in it: insert a provision for attorneys' fees and perhaps damages. Otherwise, a city can and will go ahead and enact one anyway, and figure if anyone objects to the illegality they've have to lay out thousands in legal fees to do anything about it.
[UPDATE: Just received an email from Don Kates, stating that he and Chuck Michel have filed suit challenging it as a violation of the state pre-emption laws.]
Continue reading "San Fran gun ban passes"
Permalink · contemporary issues · Comments (9)
TV program on FLA law
With regard the Florida TV broadcast mentioned below ... the version of the story online reportedly started out with a link to a list of names and addresses of Floridians who hold CCW permits. That'd be consistent with the story's lead ... why, anyone around you might have a CCW permit, so be scared! Here's a discussion on radio host Pat Campbell's blog. Needless to say, CCW holders are quite sensitive to this sort of thing... apart from the broad invasion of privacy, a thieves interested in firearms would be handed the equivalent of a shopping list. It's as welcome as, oh, the media releasing names, addresses, and value of jewelry in each home.
It turns out that the names and addresses are available online, at a Florida government website! I won't link to it -- no sense increasing the risk. I think Floridians might start looking into statutes along the lines of other states, which secure the privacy of CCW lists.
Some local bloggers are contending the State action is a violation of a 2005 Florida law. I haven't had time to track all that the statute's exemptions and provisions. It does look like (3)(o), which exempts records under sec. 790.06, the CCW permit statute, covers it, so that it's not a violation. The 2005 statute is aimed at prohibiting lists of firearms and firearms owners, not at ensuring that such lists as allowed are kept private.
Permalink · media · Comments (2)
9th Cir. on punishing allegations of police misconduct
Prof. Volokh, on his Conspiracy, has an interesting comment on a recent 9th Circuit decision that may well go to the Supremes.
The 9th struck down a California law that penalized filing of false complaints against law enforcement, on the ground that it imposed no such penalties for false statements supporting law enforcement. They found it a restriction on freedom of expression that was not content-neutral.
First time in quite a while that I find myself agreeing with the 9th Circuit.
Permalink · General con law · Comments (0)
If it bleeds it leads--program on FLA law
WFTV in Florida leads off with
" Next time you're out in a crowded place, take a look around. Chances are someone's carrying a handgun and you wouldn't know. Channel 9's Steve Barrett has uncovered just how common concealed weapons are in the places we all go.
It might be in a purse, or a pocket, a car, or a briefcase, and you have no way of knowing. In Central Florida, about one in 40 adults has a permit to pack hidden heat."
Then (having gotten the viewers' attention through the usual medium of fear, it can lay out the facts:
"That worries many people, especially now that Florida law allows the use of deadly force if someone feels their life or property is being threatened. Yet, statistics show violent crime actually decreased with Florida's right to conceal, depending on who you believe, anywhere from seven percent to 40 percent.The Hogkinsons are tourists from Great Britain. Powerful guns are outlawed there, yet both wish they could carry.
"People who carry guns are not out there starting things. They're taking care of themselves in something somebody else starts," said Steven Hogkinson."
It's actually a pretty balanced presentation.... the amusing part to me is that they felt compelled to lead off with the fear angle, to get viewers' attention. I suppose it's just part of the style, something expected. If you saw the evening news begin with someone telling you why there is no reason to be concerned about avian flu, street crime, domestic terrorism, whatever, you'd probably wonder what was going on. Same thing if the description of an auto accident began with "Luckily, no one was hurt..."
Permalink · media · Comments (2)
Debate on practicality of originalism
David Bernstein, at the Volokh Conspiracy, begins the debate by suggesting originalism is in crisis, citing Scalia's reluctance to attack or narrow Wicker v. Filburn (which began the very broad reading of the commerce power that endures to this day). The reference is to Scalia's joining the majority in the medical marihuana decision. "Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist."
Jack Balkin suggests originalism won't fly because what drives national politics is business rather than constitutional theory, and at the national level business has a considerable interest in federal power (so long as it's not directed at business). "And the earnest men and women who created this jurisprudence forgot what I believe to be the central lesson of constitutional interpretation over the country's history: what shapes the structure of positive constitutional law over the long run is not clever arguments and dueling quotations from the framers but larger social and historical forces, which shape political coalitions and produce the sort of jurists who reflect the play of political forces at the time of their confirmation."
David Bernstein responds: "It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government" What happens if they do start taking things seriously? " If you appoint very conservative judges who satisfy core Republican constituencies, these Justices are also more likely to vote for a more originalist view of federal power, not least because the impractical pointy-headed intellectual legal wing of the party almost universally believes that at least some aspects of the New Deal expansion of federal power were illegitimate, and this filters into the worldview of the Thomases, Alitos, et al. of the world."
Permalink · General con law · Comments (1)
Another Brady Center press release on Alito
Brady Center has issued another one. This is pretty good. They excoriate Alito for not showing more deference to Congress (i.e., not figuring it has the Constitutional power to do something -- because it wants to do something). It gets upset that Alito's dissent asks the the government come forth with "empirical evidence" that the action forbidden is actually within Congress's power over interstate commerce. And protests why should this be required, "beyond the substantial findings already made by Congress" -- nevermind that the 1986 amendment which added 18 USC 922(o) had no relevant findings attached.
It calls it an "example of judicial activism at its worst." To which the best response is Hinderaker's article below. It is NOT judicial activitism to recognize what is expressly in the Constitution.
Permalink · contemporary issues · Comments (0)
New pro-Alito blog
{via the Volokh Conspiracy} There's a new, pro-Alito blog online. Quite a change from the Harriet Miers days of, oh, a month ago.
Permalink · contemporary issues · Comments (1)
Use of expanding projectiles in war on terror
Via Budd Schroeder... an interesting webpage on legal status of expanding projectiles against terrorists. The point is made that the Hague Convention isn't applicable to a situation such as this, where the fight is not against enemy soldiers serving a nation-state (let along a signatory to the treaty), and thus there's nothing illicit about using match-grade hollow-points.
Permalink · contemporary issues · Comments (0)
Hinderaker and Mirengoff on Alito nomination
The WaPo has an article by bloggers John Hinderaker and Paul Mirengoff on the Alito nomination. A historical point:
"Focusing on what it means to be a "conservative" in this context highlights a basic asymmetry between how the left and the right look at the Supreme Court. Until the past few decades, nominations to the court were generally noncontroversial. The court was not viewed as a political power center, and most people assumed that a judge would affect their lives only if they happened to have a case before him. Thus, as recently as 1962, Justice Byron White was confirmed just 11 days after being nominated by President John F. Kennedy, by a unanimous voice vote in the Senate following a Judiciary Committee hearing that lasted a single morning.What happened to turn Supreme Court nominations into mini-Armageddons? Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority. ....
When conservatives say that we want "conservative" judges, or "strict constructionist" or "constitutionalist" judges, what we mean is pretty simple: We want judges who won't make stuff up. We want judges who won't view the Constitution as a mirror in which, at every turn, they see reflected their own opinions and policy preferences.....
The corollary of the proposition that judges shouldn't make up stuff that isn't in the Constitution or laws is that judges also don't have the discretion to ignore language that is in the Constitution or the laws. Thus, the interstate commerce clause must be recognized as a limitation on Congress's power to regulate the economy, as Judge Roberts noted in the case of the "hapless toad." The Fourteenth Amendment's guarantee of equal protection of the laws can't be ignored every time a public university wants to prefer some applicants over others, based on race. And the Second Amendment's guarantee of the right to keep and bear arms can't be treated as if it got repealed somewhere along the way.
It is in connection with such issues that liberals often argue that conservative judges are really just as "activist" as liberal judges, if not more so. This is based on the observation that conservatives sometimes hold statutes unconstitutional because, for example, they exceed the constitutional limits on federal power. But again, liberals overlook a fundamental asymmetry: It is activist to import something into the Constitution that is not written there, based on one's own policy preferences. It is not activist to apply and enforce the Constitution as it is written. That, on the contrary, is the duty of every state and federal judge."
Permalink · contemporary issues · Comments (1)
Illegal gunmaking in the Philippines
The Tapei Times covers the industry. Pistols, subguns -- these guys will make them, from scrap metal. The illegal gunmakers reportedly number in the thousands. And lower-ranking government officials are among their customers!
(Some enterprising fellow is going to get to these guys and tell them they can make a fortune in replicas. Why make some pocket change for a pistol when you can put away five hundred for a flintlock, or a thousand for a wheel-lock?)
Permalink · non-US · Comments (1)
Still more on Miller, and its author
I knew Justice McReynolds, who wrote the Miller opinion, was a bit of an odd duck (being, among other things, a racist, an anti-semite, and a hater of wristwatches), but I just came across a webpage summarizing the memoirs of one of his clerks. Two interesting notes: he used his court-employed messenger as a retriever when he went duck hunting, and when the messenger died, six Justices attended the funeral. None attended McReynold's own rites.
Here's a more detailed review of the clerk's autobio. Apparently, McReynolds also hated people who wore red ties, demanded that clerks stand in his presence and address him as "sir," and refused to sit next to Brandeis (who was jewish) for a Court photograph.
It would be an interesting study to determine why Woodrow Wilson appointed him to the Supremes (Wilson wouldn't have objected to his racism -- but what about all his other less-than-endearing traits? Were they unknown? Overlooked? Overweighed by something else--but WHAT? He was a law prof. for a time, but never appears to have demonstrated any great brains).
Permalink · US v. Miller · Comments (0)
More on Miller
James Bardswell's incomparable pages have a transcription of the court file and government's brief in US v. Miller. It's interesting to note how the government's position, as well, appears to have suffered from the incredible speed the Court demanded at end of term.
The government's brief does not clearly set out the different theories it argued. Today, you'd split the three alternate theories into three headings. The government's brief simply lumps them into one argument, going from (1) right to bear arms is subject to reasonable regulation (argument from common law, and with historical flaws); (2) right to arms is a collective right, citing Blaksley decision and misciting others; (3) that is blended into a third position, the one the Court bought, that "arms" relates to arms suitable for military use and not those useful only in brawls and such.
As further evidence of haste -- the government mis-cites the key case for collective rights as State v. Blaksley rather than the correct City of Salina v. Blaksley, suggesting that the drafter of the brief was working from memory and never went back to cite-check even the most important cases cited for its arguments.
Permalink · US v. Miller · Comments (0)
Waiting periods for nonlethal defense tools?
Miami-Dade commissioners have approved a rule imposing a five-day waiting period for stun gun purchases.
Exactly why is anyone's guess....
Permalink · contemporary issues · Comments (4)
AZ appellate decision on negligent entrustment
The Arizona Court of Appeals just ruled in Tissicino v. Peterson that a mother could be (could be--it reversed a grant of summary judgment, meaning the case can go to trial) liable for negligent entrustment of a firearm to her adult son. Core facts: son had IQ of 74, drank heavily, and had accidentally shot himself in the past. Father had given son the gun 20 yrs earlier, then took it back because his brother had taken it and used it in a crime (one may infer this was not the average family). After father went into nursing home, mother kept it hidden, then eventually gave it back to the son, who accidentally shot and killed someone while he was intoxicated, and was jailed for manslaughter.
The argument for summary judgment was that one cannot negligently entrust an item to a person who is its true owner. Court of Appeals concludes that "right to control" or control itself is enough, real "ownership" is not necessary to negligent entrustment.
On proximate cause--the usual rule is that criminal use by someone else breaks the chain of proximate cause. Court of Appeals notes that actions that break the chain must be those unforeseeable at the time, and which, looking back, appear extraordinary. If one gives a gun to a heavily-drinking person with brain damage, who has already shot himself in the past, an accident is not extraordinary. At the very least, it poses a question for the jury.
Permalink · civil liability-general · Comments (1)
Uodate on Parker case
Word from Bob Levy, attorney for appellants in Parker (which challenges the DC gun law) is that the DC Circuit denied the DC gov't's motion to summarily affirm (the dismissal below) on standing grounds, and ordered that the issue be addressed in briefs. (As he notes, they're not out of the woods yet on standing, but at least they've survived the first attack). Wording of order follows.
Continue reading "Uodate on Parker case"
Permalink · contemporary issues · Comments (1)
Alito's dissents
[via the Volokh Conspiracy] Ann Althouse has a commentary on a NY Times article on Alito's dissents. Another blogger, Cass Sunstein, argues that Alito's dissents are generally to the "right" of the rest of the panel (nevermind that in the legal world left and right are not terribly clear at times -- i.e., the medical marihuana case -- and even in the case of the First Amendment, campaign finance reform has much of the left enthralled and much of the right appalled).
Althouse points out that the article repeats Sunstein's conclusions, but also mentions that Alito dissented in four cases that the Supreme Court later took, and in three of the four ruled the same way as his dissent called for. Prof. Frank Cross of the Univ. of Texas, who runs a database on how the Supreme Court treats Circuit decisions, say those are the highest numbers in his database (not clear if that's the highest number of "dissents adopted out of cases taken" or the highest percentage of the same).
New York City cooking crime books?
An interesting report that New York City may be cooking the books on its crime statistics.
It wouldn't be the first time. If memory serves me correction, at one point in the early 1960s the folks who compiled the FBI Uniform Crime Statisics stopped taking reports from NYC, on the grounds that the figures were obviously cooked to make NYC sound safer than it was.
Continue reading "New York City cooking crime books?"
Permalink · Crime and statistics · Comments (0)
Law prof's caution on Alito
A pro-Second Amendment law prof emailed me:
Don't bet the farm.
Jodge Alito would give Congress the green light, under the commerce clause to regulate - BAN - firearms "if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate
commerce."
There has never been any requirement that Congress make "findings" that are true or even supported by evidence. And no court will second-guess Congress on the issue of "substantial[ness]" of the effect.
This is a GIANT loophole in the record of a Judge from anti-gun New Jersey who has never spoken directly on the issue of firearms or the Second Amendment.
His record provides no positive basis to suppose he's pro-Second Amendment. He might be, he might not.
Permalink · contemporary issues · Comments (1)
NRA on a roll in Florida
An article in the Daytona Beach-Journal, with the usual slant.
Permalink · contemporary issues · Comments (0)
Briefing "schedule" on US v Miller
The Supreme Court case of US v. Miller (1939) is the only modern case (i.e., since Dred Scott) to say much about what the Second Amendment means. It's been noted (first by me, in a 1975 article) that only the prosecution filed a brief or appeared in that case.
I was just looking at the clerk's documents in the case. Compared to modern Supreme Court practice, where you have months to file a brief and prepare for argument, they paint an extraordinary picture of how things were done in days of yore.
March 13, 1939: Court notes probable jurisdiction (i.e., "takes the appeal").
March 15, 1939: Court writes defense counsel a one-sentence note, simply saying "Counsel should be here on Friday, March 31st, for argument of the case of [citations follow]." Sixteen days' notice! And counsel is in Arkansas, and this is before fax or Fedex, and mails appear to have taken quite three or so days to reach him.
March 22, 1939: Defense counsel writes back. Unable to understand, upon reading rules of Supremes, how it can be set this soon. Have not even received government's brief yet. Don't have printed record, either. Was appointed as counsel and will probably not be paid for it. Probably not possible to appear for argument, but would like to file brief.
March 25, 1939: Clerk writes defense counsel. Normally appellant is required to file brief 3 weeks before argument. "Toward the end of the Term cases are reached so promptly after preliminary consideration that it is very often impossible to comply with the rules as to the filing of briefs and the argument of the cases is not delayed for that reason." Understand gov't has given you a typed copy of brief, suggest you file yours this coming week. If not, we can continue argument to week of April 17. Should file petition in forma pauperis, signed by client under oath (Note: client had been released and apparently fled).
March 28, 1939: Defense counsel sends telegram to Court. "Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be able to present & argue case. Paul E. Gutenson."
[UPDATE: Yes, it's sad to think that a case of this import would have been rushed through in such a manner. Or assigned to McReynolds, who was not the brightest bulb in the pack. I mean, the Court then had Felix Frankfurter, Hugo Black, and a few others. Not to mention that the case could have used a little development at the trial level. The indictment was quashed with no evidence being taken. So, as the Supreme Court noted, there was no evidence whether or not the gun at issue (a sawed-off shotgun) was suitable for military/militia use. The Court just said it couldn't take judicial notice of that (judicial notice only applies where a fact is so obvious and indisputable that it need not be proven -- Richmond is the capital of Virginia, Nov. 1, 2005 fell on a Tuesday, etc.]
[ANOTHER: a law prof friend points out there is no record that Miller's shotgun was actually sawed-off. I'm just using that as shorthand for the NFA requirement, which is of registration of shotguns with barrels under 18" or under a certain total length (I think 27"). In practice, most guns of this brevity will have been cut down, but the NFA applies whether they left the factory that way or not, and does not apply, even if the barrel is cut down, so long as everything stays over the limits.]
Permalink · US v. Miller · Comments (1)
Thoughts on Alito nomination
I won't bother to link a bunch of Brady Campaign press reports, since it's no more than the media picking up their press release, linked below. But they appear to be taking the lead on the Demo counterattack. That in turn ducks the question of qualifications (good choice) and goes direct to "this guy, if on the Court, will vote against legislation we like or maybe for legislation we don't." In short, the same considerations you'd have if he were running for Congress. A few thoughts:
1) The nastiness of fighting over Supreme Court nominations has escalated lately, I think largely because the judicial role is increasingly seen in this light. (After 30 years experience, I would be the last to say judges are impartial decisionmakers unswayed by their own values. BUT I would expect the Supreme Court to try harder than most). It's not so long ago that we had the younger Justice Harlan striking down a prosecution of a guy for wearing a "Fuck the Draft" t-shirt, when it's safe to say that Harlan found the shirt appalling. Today ... look at the campaign finance decisions. It's hard to say that they were based upon anything much more than "campaign reform is a good idea."
2) The split between originalists and positivists and the-law-is-what-I-want-it-to-be types is becoming more and more sharp. It's become so different that a while back I read a law prof. arguing, and rather cogently, that the most one can expect of a judge is that he is consistent to his approach. That is, if Scalia is a textualist, and Thomas an originalist (which are close but not identical), they will not depart from that analytical mode in a case because they want a different result.
3) In fighting on this ground, though, that will be brought out from under the rock. The bottom line becomes "to hell with the Constitution, and principled reading of it -- we want a guy who will vote to uphold certain things, and vote our way." By "principled reading" I do not mean "agrees with me." I mean simply "honestly tries to figure out what it means, without resort to whether he likes the result." I tend to think most of the American people are less cynical than I on whether this happens, and that almost all would agree it SHOULD happen. Even if they get POed over a result now and then. And they probably would be disturbed to hear arguments over an "evolving constitution" and suchlike, and feel great security in a person judge who believes that his job is to find meaning in the original. (And who can respond: if you don't like the original meaning, it is within your power to change it, and then I'll follow that).
4) The confirmation battle will be fought out between, by all accounts, a first-rate legal mind, opposed by Ted Kennedy, Diana Feinstein, etc.. I think I know where I'll put my money.
5) In short, the Demos are attacking the high ground, with indifferent weaponry wielded by their worst troops. Reminds me of the last ten or twenty years. And to think this is a party that once controlled both Houses and the White House for decades (or at least long periods of time!