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June 2006
The herpes theory of commerce clause jurisprudence
The Volokh Conspiracy has an interesting posting here on the "herpes theory" -- namely, if an article has EVER moved in commerce, Congress can regulate it thereafter -- like herpes, once it's got it, it has it forever.
It cites to a 10th Circuit case that essentially recognizes that the Supreme Court, in a felon in possession case many years ago, endorsed that for the Gun Control Act -- it is sufficient to prove that a felon's gun at some point had moved in commerce. (BTW, it was a terrible Burger decision, that misread the statute in several ways. The statute, on its face, did not bar the conduct involved, but the court made it applicable -- if Congress didn't draft a law the way the Supremes felt it should have been drafted, they were going to correct that). The 10th Circuit noted that this approach to commerce couldn't be reconciled with post-Lopez rulings that say the commerce clause must be met in one of three ways, none of them including "if it has ever moved in commerce." But, the Circuit concludes, Lopez and later cases never overruled the earlier decision, and if the two groups of caselaw are to be reconciled, that's a job for the Supreme Court.
UPDATE: link fixed.
Permalink · Commerce Clause · Comments (1)
Prof. Barnett on terror and the unorganized militia
It's a 2001 article, but still worth reading.
Permalink · militia · Comments (2)
Judges vs. juries
Over at Volokh Conspiracy there is an interesting debate (I link to the page in general since there are several postings) over a survey, quite large, of federal criminal cases that concludes judges are MUCH more likely to acquit than juries. It also concludes that this gap arose after 1989 -- before then, there was little difference.
The difference appears to span all types of cases -- misdemeanors as well as felonies, defendants represented by PDs and those represented by private counsel, etc.. There is a debate as to why, and the one explanation that seems to hold water is that the stiff sentencing guidelines (which are/were indeed VERY stiff) make judges more willing to hold the prosecution to a strict standard of proof. I'd say this is an argument for a fully informed jury (i.e., where the jury knows the likely punishment). Judges who are "in the know" hold to a stricter standard of proof than juries who are kept in the dark. There is also a risk of self-selection: you only go to a judge on a case with a clear legal defense -- but why would this only arise after 1989?
They note that defendants routinely go for jury trial anyway, and when they ask for a bench trial prosecutors don't use their veto power.
House votes to remove triggerlock sales requirement
The US House of Reps has voted to remove the requirement that new guns be sold with trigger locks. It now goes on to the Senate. 42 Democrats bolted to support the bill.
NH man arrested for videotaping officers
Via Slashdot comes the tale of a Nashua NH man who had a security videocam system for his house, which videotaped some officers when they came to bust his son. Afterwards, he took the tape to the police dept, asking to speak to someone in public relations, and contending the officers were rude.
They arrested him on felony charges, based on a state statute against wiretapping and bugging people w/o their consent. Full story here.
I guess under that standard, anyone with a security cam in NH is committing a felony. And if it does catch a burglar, he's the victim of their felonious conduct. The local police might want to think twice about that. Any time a prosecution is based on such a video, there might be a legit question about whether it has to be suppressed.
Rant about court rules
The US District Court here has gone over to electronic filing. One side-effect is that a lot of the older attorneys, who haven't become computer nerds (and, more importantly, whose secretaries haven't become computer nerds) no longer take cases there.
Cripes. The problem is that the court's system was not quite ready for prime time. You start by converting a document into .pdf. Often, you have to insert scanned-in documents. If the total is over a certain size, it must be broken into chunks.
THEN you sign into a webpage. There are two webpages, incidentally. You can upload on one, but have to view documents on a different site. Each has a different username and password. The passwords are of the "12XZ0045G" variety, to ensure security online while making sure you have to write them down and make it totally insecure in your office. Nevermind that a hacker probably has more profitable things to do than invent court pleadings in your name.
After logging in, go to the case where you want to upload. This takes a time, since the format for the cases is not one ever used here (i.e., it's a different sequence of year-civil or criminal-number). You then go thru about 6-7 screens and finally get to upload.
Okay, at least you would have saved the time of going to the court (half an hour's drive from me) or mailing a copy. No... you're not finished!
The judges apparently like hard copy. So you must print out a copy, attach the email back from the court computer showing that it was sent to the other attorney, and deliver or mail both to the clerk's office.
Oh, and if your motion asks for an order, as they usually do, then you must send the court, by email directly to the judge, a draft order. The draft order must be in WordPerfect format, since the district court is one of the few offices I've encountered that doesn't use Word. (This part is not very easy on me, since I run a Mac, WordPerfect stopped supporting Macs years ago, and a Windows WP file is not compatible with a Mac WP file).
Review of Steven Halbrook's latest book
Neue Zürcher Zeitung has published a review of Steve Halbrook's latest book, "The Swiss and the Nazis. How the Alpine Republic Survived in the Shadow of the Third Reich." The review is in German, but I've put an English translation in the "read more" section.
Continue reading "Review of Steven Halbrook's latest book"
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Busy day for Supreme Court
The Supremes customarily decide the easy cases first and save the tough ones for last. (That's why I was amused when, early in the term, the newspapers were saying that the Roberts Court must be stressing collegiality because it was handing down so many unanimous decisions. The 9-0s always tend to come at the beginning of a term, the 5-4s at the end). Now the term is wrapping up, and the Supremes
1. upheld Arizona's insanity defense, which requires a defendant to prove, by clear and convincing evidence, that he did not appreciate that what he did was wrong. It didn't include the first alternative of the common law M'Naughton test -- that he was so out of it he didn't appreciate what he was doing. Vote is 5-3, with Breyer concurring in part.
2. Ruled in Hamadan v. Rumsfeld that trying accused terrorists by military tribunal violated the Geneva Convention and the Code of Military Justice, and was not authorized by Congress's broad use of force enactment. Vote is split, four Justices in a plurality, Kennedy in a concurrence, and three in dissent, and Roberts abstaining. Just counting who joined in which parts of the plurality or the dissent will give you a headache.
UPDATE: Scotusblog has an interesting take on it. They say the biggest part of the ruling isn't the narrow result (no tribunals) but that the Supremes hold that the Geneva Convention, as a treaty obligation, governs the war against al-Qaeda. That would mean, among other things, that the rougher interogation techniques were a violation of the Convention, and thus are violations of the War Crimes Act. Comments note some complications -- some provisions bind the signatories as to everyone, others only apply to troops of another signatory, but the latter might apply or might not, dependent upon the citizenship of the detainee. The Counterterrorism Blog thinks Congress should act, and predicts that will be a boost to Republican hopes. Clayton Cramer has an excellent post explaining in plain and concise terms the ruling and the dissent's critique of it.
Permalink · General con law · Comments (0)
San Fran victim turns tables on robber
Via Don Kates -- the San Francisco Chronicle reports that three robbers accosted a victim in the Tenderloin district, whereupon he shot and wounded them, and skedaddled. One of the robbers went to the police, whereupon they were all arrested.
A police inspector says ""It's rare to have a victim be armed and use the weapon successfully on all three perpetrators,'' Peterson said. "We would like to talk to that victim to hear the rest of the story.''"
Of course (1) the robbery victim doesn't want to talk to police -- since only a few high level politicians, such as Diane Feinstein, can get gun permits in SF, he'd be certain to be arrested after telling the "rest of the story." (2) the fact that the robber thought it was a good idea to go the police, presumably to protest at having been shot by his victim, tells you a lot.
Permalink · Self defense · Comments (4)
Strange beginning to the day
I just got spammed by al-Jazeera, regarding their latest bin Laden tape.
Cam Edwards on UN gun summit
[Via Instapundit]
Permalink · UN · Comments (1)
Another invention
Another invention that fills a much-needed gap in technology.
encrypted cartridges. The cartridges would be programmed so they would only fire if the user had entered a password into a keypad on the firearm.
The article states that it "would undoubtedly cost more than a conventional gun, but many firearm enthusiasts would surely pay a premium for such added security." Uh...to defend myself, I need to access a tiny keyboard and make sure I have the right ammunition and hope the battery didn't run out. In turn, I get the security of ... well, if someone stole a cartridge from me, they couldn't use it.
Hat tip to Kurt Fremont.
UN conference on small arms
Blogcritics has an insightful post on the issue.
Permalink · UN · Comments (0)
Second Amendment Carnival
The Second Amendment Carnival is starting up. (Via Instanpundit).
Permalink · Festivals · Comments (0)
Service for finding shooting ranges
An interesting page at MapMuse--click on it for interactive maps of shooting ranges throughout the US.
Saddam Hussein's blog
Just in the mail -- the National Lampoon's new book containing Saddam's trial blog. Both it and the website are hilarious (caveat: I have a really sick sense of humor). I particularly liked the progress of his hunger strike (his guards keep throwing fast food into his cell, and he finally decides he can eat just one Pringle potato chip -- that will not throw him into the power of the American Satan...). Also the picture of Ramsey Clark. But I don't want to give away too much...
Supreme Court rules in Vermont campaign finance case
The Supremes just issued a ruling (pdf file) striking down the Vermont campaign limits, which limited total campaign expenditures and put a very low ($200-400) limit on contributions.
The vote is 6-3, Breyer writing for the majority (four of those votes come in concurrences). Dissenters are Souter, Ginsberg and Stevens.
Notes: it emphasizes the vitality of Buckley v. Valeo, which is esp. interesting given that Breyer is writing (many saw him as trying to underline Buckley, at least in other contexts, and going toward a "the government can regulate as it pleases" standard). Alito's brief concurrence argues it was not necessary to consider whether Buckley should be overruled, as the parties mentioned that point only in passing. Kennedy's concurrence expresses his skepticism with regard to campaign finance regulations generally, in light of the First Amendment. Thomas and Scalia's concurrence suggests that Buckley didn't go far enough in protecting First Amendment freedoms (which puts Breyer's invocation of the case, and his pitch to stare decisis, in an interesting context -- he may have been trying to reinforce that caselaw against future attack from the argument that it didn't go far enough, rather than to answer the state's suggestion that it went too far).
Stevens dissents, arguing that Buckley's opposition to expenditure limits should be overruled, and Souter and Ginsberg contend that the Vermont statute should have passed muster because its limitations were not proven to sufficiently impact campaigns.
Permalink · Politics · Comments (0)
Article on American Shooter & Hunter Assn
Here's a column in the Ft. Wayne Journal-Gazette touting the American SHA. As I've noted previously (see archives under antigun groups), the group was set up by antigunners to pose as a pro-gun group. As might be expected, the column here furthers that, insisting that it's formed as a moderate group standing between NRA and Brady Campaign.
Wonder where their startup money came from? Read somewhere they started with half a million in the bank. Pretty hard to find that, when you have no members at the outset.
Anyway, the column notes correctly that one founder of the group "co-founded Stop Handgun Violence and is a former board member with the Brady Campaign. " It claims of the other, "Ricker, a former chief lobbyist for the NRA, who in recent years has testified in lawsuits by the NAACP and cities against the gun industry" who "parted company with the NRA because of its all-or-nothing mentality."
Might as well set the record straight. I knew Bob Ricker when he worked for NRA. He wasn't the "chief lobbyist." He was an attorney working under the General Counsel for some short period (maybe a year, my memory is imperfect here). Then he and Richard Feldman formed a group established by the gun manufacturers, and were with that for some years.
You've got to understand that the manufacturers and NRA rarely see eye-to-eye. The Mfrs see things as a business. If a gun law doesn't hurt your profits, no problem. Even a complete ban is OK, so long as it affects someone else's guns (Assault weapons bans are perfectly OK, unless you're Colt ... and even then it just means taking the flash suppressor off, in exchange for your prices skyrocketing). And don't look at the long run! The fiscal year is the question. So the manufacturers' group signed on with a variety of gun legislation and were actively promoting it.
Eventually, NRA brought the mfrs to their senses. I forget whether the group was dissolved, or its leaders fired, but it was one or the other. Ricker was out of a job. He found one testifying as an expert witness for the cities suing the gun manufacturers. And now he's heading up this group. But to describe him as a former chief NRA lobbyist, who parted company over its positions, is creative writing.
[Update: I got an email from someone mentioned here -- unfortunately, I get tons of spam and had their email sender, usa.com or something like that, blocked. The blocked msgs get deleted automatically, so I have no idea of its content. If you'll resend, I've taken that url off the block list).
ABA takes a dive
The American Bar Ass'n takes a dive on antitrust violations. In 1996, ABA was sued for antitrust violations, and agreed to a consent decree. Dept of Justice contends that it violated its terms, moves to hold it in contempt, and ABA has agreed to pay $185,000 to settle the matter. The allegations are that ABA has manipulated its process for accrediting law schools. Specifically, that it tried to fix faculty salaries (I assume by dinging schools that paid less than it desired), dinged for-profit law colleges, and made it difficult for persons attended state-accredited (but not ABA accreditted) schools to get into ABA accredited ones. In short, that it used its certification process to fix wages and drive out competitors to its already-accredited schools.
I always thought the accreditation process was rather wierd. Most states (apart from California and perhaps a few others) require graduation from an ABA accredited school before a person can take the bar exam. ABA is of course a private group -- most attorneys aren't members, nor am I. So before you can take a government exam for a licensed trade, you must not only get a degree, but it must be from an institution certified by a private group (and not subject to standards like due process, or public approval in any way).
[via the Volokh Conspiracy.]
UN views
Oxfam, a coalition of 12 UN Non-Governmental Organizations, releases surveys indicating that people fear gun violence. In case you're wondering what Oxfam thinks might be suitable controls, "even in Britain and Canada, more than one in three people (39 and 36 percent respectively) worried about becoming an armed violence victim." and "In both Britain and Canada, six in every ten people thought it was too easy to obtain a gun in their country and more than five out of ten South Africans also agreed."
Permalink · UN · Comments (3)
Three cheers for James Earl Jones!
“The world is filled with violence. Because criminals carry guns, we decent law-abiding citizens should also have guns. Otherwise they will win and the decent people will lose.”
Supreme Court on defenses
Prof. Orin Kerr has a post on the Supreme Court ruling yesterday in Dixon v. US. It involved a woman who violated GCA 68 and alleged duress as a defense: her boyfriend had threatened to kill her if she didn't. The ultimate question was who bears the burden of proof, and what is that burden.
Kerr points out an interesting theme underlying that question.... Congress just passes laws and, unlike most states, never bothers to have a statutory list of affirmative defenses, what is required for each, and who bears the burden. Most federal defenses thus are created by the courts, without statute, and the question is how should courts figure out what is a defense? The Court seems to have gone in several directions in Dixon.
Majority: Congress is assumed to act against a background of common law defenses. Problem here is to figure out how those were treated, as a generality, in 1968. (Rather like some aspects of originalism, he notes -- try to find an answer in intent, when those acting may never have spoken to, or perhaps not contemplated, the specific question).
Justice Kennedy: Congress is assumed to mean for the courts to recognize defenses, which may evolve over time. Hence question is not limited to the law as it stood in 1968.
Justice Alito: agrees. It is a strange fiction to assume that everytime Congress enacts a law, it reviews the body of caselaw on affirmative defenses as it then existed. Besides, this would mean that the burden of the same defense might shift around depending on whether the statute involved was enacted in 1940, in 1970, or in 2006.
Justice Breyer: rather like Kennedy, but tends to regard recognizing defenses as a matter of court policy, rather than an inquiry into how the law stands (i.e., what other courts have done).
I'm from the government and I'm here to help...
From The Bitch Girls comes this story of two officers trying to get (I assume) a mental case out of a tree. One officer tries to Taser him, fails, and asks the other to use his Taser. Unfortunately, the second officer draws his gun instead of his Taser and lets drive...
That's gonna play hob with the job evaluation this year...
[Update: at least the officer was a bad shot. He hit the guy in the leg, and the fellow called down "'Ow, that hurt, I'm coming down, I'm coming down."]
"Death Wish" comes to Britain
Peter Glover has an interesting article at Tech Central... in the wake of a five year effective sentence for a convicted pederast (the victim was a toddler, BTW), a British film producer is bringing out "Outlaw," a Death Wish - like film set in Britain.
"As Love's movie lead puts it, "If you want to spend the rest of your life being raped and bullied...and letting the pedophiles wander the playgrounds while you smile mutely and pay your taxes, then walk out the door." I suspect there won't be too many "walking out" on Outlaw however, unless it is because of its explicit content."
[Via Prof. Joe Olson]
Permalink · non-US · Comments (1)
So much for the government will protect you
Sometimes, it can't even protect itself.
Permalink · Self defense · Comments (0)
Chuck Schumer and drug prices
Off topic, but...
Merck & Co.'s patent on Zocor, a cholesterol-reducing drug, is about to expire. Another company, Teva Pharmaceuticals, began gearing up to bring out a cheaper generic. That's the free market.
Merck cut a deal with an insurance group to reduce its price for Zocor to below the generic price. Okay, that's the free market. They're going to lose the legal monopoly conferred by the patent, and they'd better make their prices competitive.
And so.... Chuck Schumer is calling for an FTC investigation of Merck's price cut.
UPDATE: Here's another patent case involving Teva Pharmaceuticals, in which Schumer filed an amicus brief backing the company's position.
Just did a quick search of the Federal Elections Commission political contributions webpage. Let's see, Harold Snyder, VP of Teva, donated $45,000 to the Democratic Congressional Campaign Committee in 1998-99. In 2001, George Barnett, described as a Teva Executive, gave $2000 to Schumer's election committee. William Fletcher of Teva also gave $2000 to him.
The Demo health plan seems to be -- lowering drug prices is a bad idea, if it hurts Democratic contributors.
Interesting legislative move in AZ
Earlier this year the Arizona legislature passed a bill that would rule out firearm confiscation in the wake of a natural disaster. The governor vetoed it on the ground that it'd never happened here, and was unlikely to. (The governor has signed some very pro-gun bills, but has a track record of vetoing things that would limit the governor's authority).
According to this report, a state Senate committee has reported out a proposal to make it a referendum, to be voted upon in the next election.
Pretty clever. (1) As I recall, under the state Constitution a measure passed by referendum can only be repealed by referendum -- you might say it's one step short of a constitutional provision, since the Legislature has no power to repeal it. (2) A referendum energizes voters who might otherwise sit out the election, and I'd wager that 99% of persons motivated by this vote would be pro-gun (and, more to the legislators' interest, convervative and Republican. Not that I'm cynical or anything...)
Joyce Malcolm: Mad Dogs and Englishmen
Joyce Malcolm has an article in the June 17 Wall St. Journal (subscription required). I've got excerpts in the extended entry below.
Continue reading "Joyce Malcolm: Mad Dogs and Englishmen"
Carnival of Cordite
The latest Carnival of Cordite is up. I found the postings on the adequacy of the 5.56 mm. especially interesting.
Back from trip
Back from a grueling trip --18 hours on the plane or awaiting connections, in 2.5 days -- to Minneapolis to film Joe Olson for my documentary, and to Milwaukee to be filmed by JPFO for their upcoming documentary. Got to meet Aaron Zelman for the first time -- yup, he's a true believer!
Had an interesting experience while on the road... stopped outside a hotel and wound up chatting with a retired CIA employee. He had some great war stories. In DC, diplomatic cars have special diplomatic plates. The first two digits are a two-letter code for the country they were issued to. He told me that the Soviet Union's code was FC... which stood for "f___ing communist." This wasn't speculation -- they guy in the State Department in charge of assigning the codes was a retired Marine officer, and took pleasure in assigning the code to them.
He also mentioned there was a constant low-grade harrassment war between us and the Soviets. One day a Soviet diplomat/KGB went to incredible length to shake off his "tail" as he drove thru DC. Next morning he found all his tires slashed, a sort of "so there" message. Next day an American diplomat in Moscow found all his tires slashed, a message of "we can play that game, too." This sort of thing went on constantly.
Alcohol, Tobacco and Firearms party
From Dave Kopel -- Independence Institute is hosting its annual ATF party on June 24, in Bennett, Colorado. Details in extended entry below.
Continue reading "Alcohol, Tobacco and Firearms party"
Light blogging for a few days
I'll be on travel and outa action Sunday, Monday and Tuesday. Gotta do filming for my second amendment documentary, and be filmed by JPFO for their upcoming documentary.
UN meeting upcoming
According to there is a UN meeting relating to gun control laws set for later this month.
Permalink · militia · Comments (0)
Al-Zarqari papers
Off-topic, but... Instapundit notes a debate over authenticity of documents captured in connection with the killing of Zarqawi (since there is dispute over whether they were actually found with him, or in a different raid that day, I have to be ambiguous). The document is in the form of a report and recommendations, the report essentially being that we terrorists are losing -- attacks down, national guard protecting the Americans, our finances obstructed, Iraqis turning against us and ratting us out constantly -- and the recommendation being that they try to embroil us in a fight against the Shiites, or else against Iran.
(Since the report would be good news, of course my local paper carried it in a story where the first half questioned its authenticity, and only a few of its statements were described).
Instapundit notes that Michael Ledeen thinks the document is a fake, largely because its descriptions (e.g., attacks are down) do not match reality (attacks were up in May). But the translations I've seen bear no date. One major purpose of writing a report down is to have it available to you later. That a document is captured in June is no basis to suppose it was written in June.
Wonder if terrorist managers write CYA memos? "I told them months ago things were going downhill, and made suggestions. Did anyone listen? Noooo...."
The thought of terrorism and bureaucracy at the same time is more than I can bear this early in the morning. At least it'd make the world safer. If an IED required the same paperwork that Interior Dept required for filing a notice of appeal (a 1-2 page court document), then planting the IED would require:
A set of recommendations and approval prepared in seven copies (plus an eighth that you kept for yourself, since once the seven were filed no one could ever find them again);
Approval four levels above you;
The documents can be stopped at any level over a minor typo, or nonconformity to the style manual (I once had an emergency appeal recommendation stopped because there was one space between the period ending a sentence and the first letter of the next sentence, and the style manual called for two). Correcting an error requires starting over ... seven copies, in a folder, reviewed by each level.
At each stage, the paperwork goes into a manager's in box and sits until he gets to it. Since five attorneys report to one Ass't Solicitor, he's always swamped, and the same problem exists at each higher level. Again, any typo means the journey thru in boxes begins anew. Oh, and each manager is likely to want to reword it a little to make it more ambiguous and thus less risky. That starts the process anew, as well.
They'd be lucky to plant an IED a month at that rate.
Lawsuit filed
Months ago (can't find it just now), I mentioned Mark Edward Marchiafava, who as I recall had been arrested by a Gonzales, Louisiana officer for open carry (which is completely legal) Liberty Zone now reports that he's filed a federal suit on the matter.
Sorta humorous
Headline on Drudge right now is "DEMS ANNOUNCE PLAN TO WIN BACK CONGRESS."
When I click on the headline, I get only "Safari can’t open the page “http://www.democraticleader.house.gov/” because it could not connect to the server “www.democraticleader.house.gov”"
I just (3:29 PM MST) tried six times and got the same response each time.
This is not a good technological start, people. Esp. since the Republicans managed to access it somehow, and their rebuttal page IS up.
[UPDATE: as of Sat. morning, it's working]
Permalink · Politics · Comments (0)
Signs you might need to change lawyers
[from my friend Bernie Oliver]
* During the trial, you catch him playing his Gameboy.
* He begins closing arguments with, "As Ally McBeal once said ..."
* Every time he says "Your Honor," he makes those little quotation marks in the air with his fingers.
* Whenever his objection is overruled, he tells the judge, "Whatever."
* He giggles every time he hears the word "briefs," or "Penal Code."
* When the prosecutors see who your lawyer is, they high-five each other.
* A prison guard is shaving your head.
Illegal knives, guns & explosives in China
China is having quite a bit of a problem with illegal knives, explosives, smuggled guns and even home-made guns.
Permalink · non-US · Comments (4)
Pair jailed for ammunition in Great Britain
I've noted previously the situation in Great Britain, where burglars are now being given warnings, and homeowners are cautioned by police to take their car keys to bed, because burglaries to grab keys are frequent.
In an interesting contrast, when British police found a " large quantity of cartridges" (44, to be precise) in a home, the occupants were sentenced to 1.5 and 3 years imprisonment.
Permalink · non-US · Comments (6)
But if you use scissors or beer, the robber will just take them away
USA Today reports on a shopowner who drove off and pursued a robber with a pair of scissors.
"The only thing I did wrong was run with a pair of scissors."
Here's another shopowner, who drove off a robber by wielding a can of beer.
(I guess some armed robbers are wussies if there is resistance... skedaddling from the sight of an upraised beer can?)
Permalink · Self defense · Comments (0)
Still more on San Fran
The SF Chronicle does run a storty. And over at the Volokh Conspiracy, Gene Volokh points out--
Considering that the measure was an almost complete ban on civilian handgun ownership, and a ban on all long arms sales, the city spokeman's statement that "We're disappointed that the court has denied the right of voters to enact a reasonable, narrowly tailored restriction on the possession of handguns,'' says wonders about claims that "we only want to enact reasonable, common-sense, gun laws."
Another spokesman protests the court "sided with the powerful gun lobby against the safety of San Franciscans," showing a wonderful grasp of the judicial function.
More on victory in San Francisco
California Rifle and Pistol Assn reports that the decision can be found here, under case no. CPF-05-505960 (write it down before clicking), and pleadings can be found here.
Lead attorney Chuck Michel, of Trutanich-Michel, LLP in Long Beach, California litigated the case. Attorneys Don Kates, Steven Halbrook, Don Kilmer, Bruce Colodny, Glenn McRoberts, Tom Maciejewski, Jason Davis, Mark Barnes, and Michael S. Hebel contributed to the effort.
New Joyce Malcolm book
Via the Volokh Conspiracy comes word that Joyce Malcolm has published "Guns and Violence: The English Experience." Dave Kopel's review is here.
The point made is that, to the extent we have records, English homicide rates started out high in the 13th-14th centuries, and then fell for the next six centuries. In the early 20th century, England began steadily tightening gun controls, plus criminalizing self-defense, and homicide, gun homicide, and general violent crime rates began to rise, the increase steadily speeding as more controls were added.
Presently, the situation is so crime-friendly that a victim of crime is warned not to shout "help," because that might incite another citizen to (shudder) use violence against the criminal, but to instead shout "call the police." and police are instructed to release a first-offense burglar with a warning.
Permalink · non-US · Comments (2)
Military technology
An interesting article on the technology that sent Zarqawi to the hereafter.
I recall reading an article by a former Soviet general a few months ago, in which he said that the revolution in information affects war-waging more than entry into the nuclear age. Company-level officers now act on more information than brigade commanders formerly had, and it goes directly to them in realtime, when in past you had to fly a photo recon mission, develop the film, analyse it, report on that, etc. As this article points out, it affects air-ground war, too. Instead of missions being planned days in advance, fighters can be kept aloft and sent to strike, or recon, whatever pops up. Essentially, a war in 2006 is in many ways enormously different from one fought in 1990 or so.
Continue reading "Military technology"
Victory in San Francisco
Just got an email from Don Kates:
Last November San Francisco enacted what was billed as a handgun ban -- it banned and confiscated all handguns in the city and severely restricted even police access to handguns -- but also included a ban on sale of all long guns,
As to the Nov., 2005 ban(s), suit was brought by a law firm w/ which I am Of Counsel, Trutanich & Michel, on behalf of the NRA and many individual San Franciscans. Today the SF Superior Court threw out the entire Ordinance. Kudos are due to a host of lawyers who filed amicus briefs including one for the Pink Pistols a group championing the right of gays to possess arms for self-defense.
The case is not over for the City will doubtless appeal.
This was Round 2: In 1982 San Francisco had enacted a similar handgun ban that did not apply to long guns at all. Twin cases were filed then, one by the NRA and one by me on behalf of the Second Amendment Foundation, and that ban was held invalid as contrary to state law.
[UPDATE in light of comment: I remember at some point in the early or mid 1980s there was a major antigun initiative on the ballot in California, very heavily hyped by the media. At breakfast the day after the vote, I told my then-wife (may she RIP) that the progun side had won. She asked how I knew -- there hadn't been one mention of it on television, or in the Washington Post. I said that's how I knew we'd won. And we had.]
Study on capital punishment
(Via Don Kates): Prof. Cass Sunstein and Adrian Vermeule have an article in the Stanford Law Review, surveying studies on capital punishment. The great majority of the studies appear to indicate it has a substantial deterrent effect on homicide. The Stanford Law Review site is here: keep scrolling down to issue No. 3. There's also an article in response, and Sunstein & Vermeule's reply to it.
Permalink · Crime and statistics · Comments (0)
Media slap at NRA (once more)
The FBI issues its preliminary crime report for 2005, showing nationwide a 4.8% increase in murders (that's number, not rate, which will be somewhat lower). The preliminary figures give no breakdown as to weapon used.
Associated Press reports it with a note:
Criminal justice experts said the statistics reflect the nation's complacency in fighting crime, a product of dramatic declines in the and the abandonment of effective programs that emphasized prevention, putting more police officers on the street and controlling the spread of guns.
"We see that budgets for policing are being slashed and the federal government has gotten out of that business," said James Alan Fox, a criminal justice professor at Northeastern University in Boston. "Funding for prevention at the federal level and many localities are down and the (National Rifle Association) has renewed strength."
Hmm... NRA was pretty strong in 2004, too, when homicide rates fell by 2.4%.
And, strangely, in 2005, the FBI report notes, homicide rates fell by 3.9% in nonmetropolitan areas where gun ownership is highest.
And the lowest 2005 homicide increase came in the West, where gun ownship is also highest... 3.2% there, compared to 5.2% in the Northeast.
Permalink · media · Comments (6)
Research on militia and National Guard
I've been doing some research on the legal origins of the two, and found some tidbits.
The present federal definition of militia (10 USC 311) as including all able-bodied males 18-45, and women in the Guard, divided into the Organized Militia and the Unorganized Militia, originates in the Dick Act of 1903 (32 Stat. 77): "the militia shall consist of every able-bodied male citizen .... who is more than 18 and less than 45 years of age, and shall be divided into two classes--the organized militia, to be known as the National Guard of the state ... and the remainder, to be known as the Reserve Militia." (Note effect on the NG=militia argument: the NG is only part of the militia). Certain federal benefits were granted, but only to NG units.
The 1903 Act retained the power of the President to call out the militia (including the unorganized) in event of invasion, insurrection, or to execute the laws of the Union (the three purposes for which it could be called out under the Constitution).
Then came foreign troubles -- first, the raids of Pancho Villa. In 1912, the Attorney General ruled that the militia (including the Guard) could not be sent outside the US. The three constitutional allowances for calling up the militia had been selected to include only things do-able inside the US. So how do you use the Guard for foreign duty?
The 1916 Act, 34 Stat. 166, 210-11, provided for simply drafting the National Guardsmen, and provided that upon being drafted their service as militia were terminated. That was done in WWI, to the great discontent of the Guard, since units were broken up. (Note the effect on NG=militia: in this case, the moment the Guard were called up, they ceased to be even part of the militia). The 1916 Act also created the concept of "federal recognition" of Guardsmen; to be eligible for federal benefits a Guardsman had to be accepted by federal authorities. (The 1920 Act, 41 Stat. 759, 784, fixed a problem created--namely, the NG ceased to be state militia when called up, which meant that when the war was over they were done with their NG duties even if their NG enlistment had not run out. The 1920 Act provided that States could require that they finish their enlistment). Note again the effect on NG=militia; from 1916-1920 Congress asserted the power to simply, and permanently, remove Guardsmen from state militia status.
Then came the 1933 Act, 48 Stat. 153, 155. This provided that NG officers were to be commissioned in the Army of the US, and that the NG of the US "shall be a reserve component of the Army of the United States...." Officers of the Guard were to be appointed by the President (the Constitution says appointment of militia officers is reserved to the States). It allowed NG officers to be terminated by a board appointed from the Army or NG as the Secretary of War might direct. The Militia Bureau of the Dept of War was renamed the National Guard Bureau. Drafting of Guardsmen was replaced by a Presidential power to call up Guard units, which would then cease to be part of the NG of their state.
In short: pre-1903, National Guard had no particular Federal legal status as such. It was a title of certain units (which became popular title for organized militia after Lafayette's visit to the US in the 1820s, he having organized units by the name in France). 1903, it is recognized, but only as part of the militia of the US. 1933, it really becomes part of the Army.
Permalink · militia · Comments (3)
Orlando Sentinel on Castle Doctrine
The Orlando Sentinel has an article on Florida's Castle Doctrine Law. As you might expect it's negative and of the "be very afraid" variety.
The title: "Gun law triggers at least 13 shootings." It says that 13 people in central Florida have "pulled the trigger this year under a new law that loosens restrictions on the use of deadly force in self-defense."
But the article doesn't try to show that the law played a role in their decisions, or triggered anything (in fact, the one person asked said he wasn't thinking of his legal rights, but of his fear). Five have been cleared of charged, three have been charged, and the other five investigations are pending. And one was an off-duty police officer.
Does it affect the charging decision? In one case, "The case was handled the way we would any aggravated battery without a life-threatening injury," said sheriff's spokesman Jim Solomons. "I don't know if the new law has impacted or affected the way we conduct these types of investigations."
Then it quotes one claiming, "In the old days, we'd say 'Where is the weapon?' Now the person only needs to have a 'reasonable fear of death or great bodily harm' and be able to articulate it," Ring said. "But what's reasonable fear? It's so vague, it's different for every one."
Hate to point it out, but reasonable fear of death or great bodily harm has ALWAYS been the core element of self defense. If anything, castle doctrine bills make it a little clearer, by providing that reasonable fear is presumed if the other person was breaking into a house, etc..
It ends with a quote that is way off: "All you have to say is, 'I was afraid,' and you can blow someone away."
Permalink · media · Comments (0)
Palm Beach Post article
So you want to write an article making people frightened of gun violence and of the "easy availability of guns." The good news is, you're in Florida, the home of "shall issue" and the "castle doctrine," so easy availability of guns is no problemo.
The bad news (for a reporter with that bent): Florida gun homicides have fallen 25% over the last decade. Even worse, they dropped 48% in your county.
Solution: keep looking until you find two zip codes where the rates have at least stayed stable. Didn't go up, didn't go down, either. And of course the cost of medical care has gone up over the last decade. The result is this article in the Palm Beach Post.
Continue reading "Palm Beach Post article"
Recycling old story
Al-Zarqawi winds up before the Pearly Gates, and the recording angel says "Well, you died a martyr's death, my friend. Let me take you to the promised reward."
They go inside the gates, and George Washington pounces and gets the terrorist in a double-nelson. Robert E. Lee takes off his coat and proclaims "Ah've been waiting for this" and begins to beat the snot out of him. Behind Lee, Al-Zarqawi sees James Madison thumping brass knuckles into his palm, George Mason practicing with a baseball bat, and a long line of others awaiting their turn.
"You betrayed me!" he shouts to the recording angel, "You lied!"
"Oh, no," says the angel, "These are the 69 Virginians you were promised for all eternity."
But nothing will ever beat The Onion's insight on the terrorists' hereafter. Altho IowaHawk's last opinion column by Mr. Z does come close.
Continue reading "Recycling old story"
Bloomberg's "sting" winds up returning guns
As part of New York City's publicity effort, Bloomberg had investigators go to a couple of NY gun stores and make supposed straw man deals, then last week NYPD cited the owners for misdemeanors and confiscated several hundred guns. It got a lot of publicity at the time. Newsday: "Togati and Spallone have had their dealers' licenses suspended as a result of their arrests, police said. The department said it also seized scores of handguns and rifles from the two stores "for safekeeping." Some Second Amendment groups have assailed the sting operations, saying they are unfair attacks on merchants of a legal product. " Another story: "Last week, the NYPD scored a major coup in both boroughs, seizing the inventories of two stores where employees were caught selling guns to unlicensed buyers." "Cops Close Gun Shop's Doors."
Less publicized is the fact that a couple of days ago the city wound up returning the seized guns and restoring the dealer's licences for all but one employee.
Inventive assault
A Missouri woman is accused of forcing her way into a dog-breeder's home and repeatedly battering her with a dead puppy.
Instapundit will probably observe that that was a waste of a perfectly good puppy.
Permalink · non-gun weapons · Comments (0)
Celebrations in Florida
United Sportmen of Florida reports (via email) their celebration as Gov. Bush signed six favorable measures yesterday. The statutes:
1. Makes it easy to register to vote while getting a hunting or fishing license.
2. No net loss of hunting lands. Any public land closed to hunting after this date must be offset by other land opened.
3. No confiscation of guns during an emergency
4. CCW records no longer public records.
5. Repeals old statutes banning guns in National Parks (I guess there was a state statute doing this) and in state parks. (No one was following the law, indeed there were public shooting ranges on the state parks, but might as well clean it up).
6. Provides that if a serviceman or servicewoman is on duty overseas, their CCW permit is extended until they return and can update it.
Mighty good for one day, or one legislative season!
UPDATE: Alphecca covers the story, with a roundup on media coverage,
Permalink · State legislation · Comments (2)
Idaho prosecutor caught with stolen guns
While we're looking at Arbitrary and Capricious:
it has a link to interesting events in Idaho Falls. It seems a city prosecutor was caught with a load of guns he stole from the evidence locker. What's particularly unlucky for him is, after telling the court he'd returned all the guns he still had, police found still more. He'd been sentenced to 1-4 years (some say 1-5), but the court has the power in the first six months to revise the sentence to probation. I rather guess he's blown his shot at that!
IdahoFallz gives some background. He'd also said that he "acted alone," but the search of his house occurred after police were informed people were going there and remioving guns.
Self defender wins legal fees under a nifty statute
Via Arbitrary and Capricious (which posts the statute): A story in The Olmypian:
Defendant was a serviceman charged with assault with a firearm; defense was that he had drawn it to ward off an angry group menacing him and his girlfriend. Jury found for him. Now the State finds itself liable for his legal fees, perhaps $25,000, under a Washington state law providing that "When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense..."
The article fills in some details. He and a friend and their girlfriends were accosted by a group of seven. The group threatened them. His friend had the gun, but dropped it and there was a scuffle and he came up with it, and warned them to back off. Prosecutor said they went with it because he hit one of the group with the handgun. The jury foreman noted they presented no evidence of this. One of the prosecution witnesses said he was so drunk he couldn't recall much of the event.
A nifty statute, although as one attorney points out, since the State rather than the county pays, it's not much deterrent to a county prosecutor.
Hat tip to refugee(at sign)ricketyclick.com, and Ricketyclick Blog
Permalink · Self defense · Comments (2)
Dave Kopel roundup on Colorado decision
Dave Kopel has a roundup on the Colorado Supreme Court split on pre-emption, over at the Volokh Conspiracy.
Permalink · pre-emption laws · Comments (0)
Thought on National Guard and the militia
10 U.S. Code sec. 311 gives the legal definition of the federal militia.
(a) says the militia of the US consists of all able-bodied male citizens (or who have declared their intent to become citizens), age 17-45, and of female citizens who are member of the National Guard.
(b) says the classes of the militia are the organized militia, the National Guard and Naval Militia, and the unorganized militia, which is all other militia members.
But a bit of research shows retirement age for the Guard is well above 45. In 2005, the Senate approved a measure to lower the retirement age from 50 from 60. Neither of those are mandatory retirement ages, just ones at which (with 20 years' service) it is possible.
It would appear to me that the National Guard thus includes persons who are not members of the "militia of the United States."
Hmm.... and here's an indication that you can enlist in the Guard if you are are permanently admitted to the US and requested permanent residence. I don't know if that requires declaring an intent to become a citizen.
Permalink · militia · Comments (3)
Clerking
Prof. An Althouse suggests, First, fire all the law clerks.
One of my amazements during my 9 year stint in Washington was how often people were appointed to high rank, and then wound up delegating their intellectual duties to folks who were wet behind the ears. Legislators who knew almost nothing of the bills before them, and were letting haughty young pups represent them to the public and handle the business of legislating. Markup sessions where the Senate Judiciary Committee would vote on amending a bill, and the vote be to do something general and let staff draft the actual amendment (which would not be voted upon), the staff being folks (then, when I was in my late 20s) no older than I and with zero courtroom experience.
Bill introduced for nationwide CCW
I don't have a link yet, but am informed by email that a federal bill has been introduced by Sen. George Allen, with 13 cosponsors, (update: reader Jim Archer reports that here's a link) to the following effect:
A BILL
To amend title 18, United States Code, to provide a national standard
in accordance with which nonresidents of a State may carry concealed
firearms in the State.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. NATIONAL STANDARD FOR THE CARRYING OF CERTAIN CONCEALED FIREARMS BY NONRESIDENTS.
(a) In General- Chapter 44 of title 18, United States Code, is amended by inserting after section 926C the following:
`Sec. 926D. National standard for the carrying of certain concealed firearms by nonresidents
`(a) Definition- In this section, the term `another State' means a State other than the State from which a person holds a license or permit described in subsection (b)(2).
`(b) Authorization- Notwithstanding any provision of the law of any State or political subdivision thereof, and subject to subsection (c), a person may carry a concealed firearm (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce in another State if the person--
`(1) is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm; and
`(2) is carrying a valid license or permit that--
`(A) is issued by a State; and
`(B) permits the person to carry a concealed firearm (other than a machinegun or destructive device).
`(c) Licensing-
`(1) IN GENERAL- If another State issues licenses or permits to carry concealed firearms, a person may carry a concealed firearm in that State under this section under the same restrictions that apply to the carrying of a concealed firearm by a person to whom that State has issued such a license or permit.
`(2) NO LICENSES BY STATE- Except to the extent expressly permitted by State law, if another State does not issue licenses or permits to carry concealed firearms, a person may not carry a concealed firearm in that State under this section--
`(A) in a police station;
`(B) in a public detention facility;
`(C) in a courthouse;
`(D) in a public polling place;
`(E) at a meeting of a State, county, or municipal governing body;
`(F) in a school;
`(G) at a professional or school athletic event not related to firearms;
`(H) in a portion of an establishment licensed by that State to dispense alcoholic beverages for consumption on the premises; or
`(I) inside the sterile or passenger area of an airport.'.
UPDATE: see extended comments below]
Continue reading "Bill introduced for nationwide CCW"
Permalink · CCW licensing · Comments (16)
New AZ law
Governor Napolitano today signed into law HD 2076. As I read it, the statute:
1. Provides that when an operator of a public establishment or public event prohibits carrying of arms, he must provide secure and temporary storage for them. Further clarifies that the storage must be immediately accessible upon leaving.
2. Public event and establishment are defined as in ARS 13-3102, i.e.:
K. For the purposes of this section:1. "Public establishment" means a structure, vehicle or craft that is owned, leased or operated by this state or a political subdivision of this state.
2. "Public event" means a specifically named or sponsored event of limited duration either conducted by a public entity or conducted by a private entity with a permit or license granted by a public entity. Public event does not include an unsponsored gathering of people in a public place.
Note that the first covers government buildings. There will probably be some officials hot under the collar in the near future.
3. Existing law states that a holstered firearm is not a concealed weapon if carried in the glove compartment of a car: 2076 adds the map pocket as a place it may be carried.
{Update: I suspect the Univ. of Ariz. wouldn't be a public establishment, since it's an area rather than a structure. But I've always had a problem with the idea that it could regulate conduct, anyway -- other than maybe providing for expulsion IF the state law allowed that. I know they have parking regulations, and will "boot" cars -- but I am not at all sure that they have any such powers, as against just doing it and figuring people will pay.]
Permalink · State legislation · Comments (1)
Great Britain struggles with its "knife culture"
Anti-knife activists, calls for five year mandatory sentences, amnesties... USA Today has the story.
Permalink · non-US · Comments (0)
Federal bill to block confiscation during emergencies
It's been reported out of committee. The Hill has the story.
And in case there's any doubt where some folks stand on the ultimate question of total confiscation:
"Joshua Horowitz, director of the Coalition to Stop Gun Violence, said there is a lack of evidence showing post-Katrina residents of New Orleans were under grave danger without their firearms. “There’s been a lot of hyperbole on this,” Horowitz said. “There’s evidence that the police were doing their job. It’s not for a gun control group or the NRA to get in there and make decisions."
Colorado Supreme Ct. upholds city AW ban
The Rocky Mtn News reports that the Colorado Supremes upheld a Denver ban on "assault weapons."
It's a rather technical "upheld" since the court split 3-3, meaning the lower court result survives, but an evenly split decision has no precedential value.
If the news report is correct, the suit was between the State and the city, and the lower court result upheld some of the regulations and struck down others. The legal core seems to have been conflict between pre-emption statutes and a city's "home rule" powers (I assume the latter are in the state Constitution; otherwise the later enactments would trump the earlier ones).
[UPDATE: I checked the opinion, and it gives little clue, just recites that Justice Eid did not take part, three judges were for affirmance and three for reversal, so lower court is upheld].
{Further update: I found a .pdf brief in the case on Steve Halbrook's webpage--look in righthand column under "Lawsuits." A quick read suggests that the Colo. pre-emption law had the same problem ours in Arizona used to have, before it was amended. The statute lays out the gun laws -- no concealed carry without a permit, etc., and then says no municipality may adopt laws inconsistent with this chapter. The city in an Arizona case successfully argued that more regulation isn't "inconsistent" with less regulation. If the state says you can't carry concealed w/o a permit, then the only thing "inconsistent" with that would be a city law saying you CAN carry concealed without a permit. Saying you can't carry openly, either, is not "inconsistent" because the state statute never expressly says you can carry openly. It just doesn't outlaw that. Yep, it's a word game, but good enough for the city to win here, and in Colorado to make it a 3-3.]
Ohio case on open carry
Ohioans for Concealed Carry reports an abuse matter.
The gun owner held a CCW permit, but was carrying openly and peacefully when apparently someone reported him. Oregon, Ohio police made a felony stop--guns out, keep your hands out of the car, etc. They charged him with failure to notify police he had a CCW permit (although he states he did so, and it's not clear to me that those requirements apply when carry is open) and with violating a city ordinance that forbids ALL carry of ALL firearms.
Then for good measure, the authorities revoked his CCW permit and confiscated his firearms. Legal basis for that is not known.
Permalink · CCW licensing · Comments (6)
Article: Founders faced same issues we do
The article is here.
(Hat tip to Jon Rolland).
When deer attack....
My op-ed in Sunday paper
The paper here has a big debate on the right to arms. In print, it's 2/3 of the first page of the Opinions section.
If it sounds a bit disjointed -- neither of us knew what the other was writing, and the result was trimmed down a bit. It wasn't a real debate: we were never in the same room, and each answered the question without seeing what the other person had said.
New blogs
Saddam Hussein is blogging his trial, and Darth Vader is telling his story. "OK, I cut the kid's hand off. Our relationship went to hell from there. Some days I am such an idiot!"
Reflection on American academia
An American grad student at St. Petersburg University (as in Russia, not FLA) notes:
"What I still find astonishing is the level of openness to different ideas over here. I presented in a panel with graduate students of the best Russian universities, some of which held the standard Russian distrust of NATO. My presentation is somewhat hawkishly pro-NATO, and you would expect sneers and derision. Instead, there was genuine interest in what I had to say. The academic freedom dwarfs that in the United States. In college, I was always afraid to say anything that ran counter to the accepted views of academia, and we all know what those views are. ... I can count on one hand the number of truly fair-minded professors I came across. That is truly a shame, and a detriment to the development of our civil society.
Fair and open debate is essential to the proper functioning of both society and government, and it's astonishing that elite Russian universities understand this better than elite American ones. Perhaps it's because they better understand the negative effect that thought control has on a country.
AZ ruling on statutory immunity to suit
The Arizona Court of Appeals has ruled in Sonoran Investigations v. Hernandez.
Decedent Hernandez was caught shoplifting by security guards, who used a choke hold on him, which allegedly killed him. His estated sued for wrongful death/overuse of force. Defendants plead a statute which absolves a person of liability for negligent or grossly negligent harm to a person who was committing a property misdemeanor.
The Court of Appeals found the statute unconstitutional under a provision of the state constitution that states: “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” It cites an early state supreme court ruling striking down a statute that immunized tavern owners against liability for harm caused to patrons by reason of their intoxication, the Supreme Court concluding that that immunity was a roundabout way of creating a contributor negligence defense.
Continue reading "AZ ruling on statutory immunity to suit"
Permalink · Self defense · Comments (0)
Lee settles suit against govt, media
Dr. Wen Ho Lee has settled his suit against the government and five media outlets for a total of $1.6 million. He was the scientist arrested on charges of spying for China, held for nine months, and then allowed to plead to a minor charge. His suit alleged that the government had smeared him with false "leaks" to the press (and, I gather, that the press had happily reported them all).
The settlement was for just under $900K from the government, and $750K from AP, ABC, NY Times, LA Times, and Washington Post. Needless to say, the latter group is complaining and saying it proves the need for federal laws to shield reporters.
Permalink · media · Comments (0)
Parker (DC case) brief online
Plaintiffs' brief in the Parker case, pending in the DC Circuit, is online in pdf here.
I've only had a chance to skim it (79 pages) but it looks VERY good. They did a solid job of developing standing, and make an interesting argument that the DC Circuit has implicitly adopted an individual rights view in deciding an FOP challenge to misdemeanor DV gun ban as applied to police officers.
ACLU and consistency
An interesting issue, pointed out by Jim Beers:
Indianapolis recently enacted an ordinance forbidding convicted sex offenders to come within 1000 ft. of parks, pools, and playgrounds, and the ACLU has sued. "The six plaintiffs, who include child molesters and rapists, are represented by the American Civil Liberties Union of Indiana." ACLU of New Mexico has sued to block sex offender registries.
The Lousiana ACLU has testified against a similar statute: "These laws promote hysteria and suspicion without any evidence of improving public safety. Instead, branding individuals with a scarlet letter prevents them from finding stable residences, or worse drives them underground....Individuals could break this law without even knowing it."
Now, I can see some of the arguments being made. "Sex offender" is sometimes a very broad class that can include some poor cuss who relieved his bladder, was seen by someone else, and took a dive on indecent exposure. And preventing a person from coming within 1000' of a school does prettty much make travel impossible.
But, I have to wonder, where were they when Congress made it a felony for a person, convicted of nothing, to pass near a school with a firearm? What is it that makes convicted sex offenders more appealing than firearm owners?
Permalink · General con law · Comments (2)
More on veteran's suit against Michael Moore
Here's an article with some legal details. It looks as if CBS, who filmed the initial interview, didn't get a written release (relying upon the implicit consent idea -- if a person consents to be filmed for CBS, he implicitly consents to their airing the footage -- and informed Moore that he was responsible for getting consent from anyone in the footage.
They add they can't imagine Moore going ahead without getting the consent. But as Jason Clarke and I showed in our book (see left margin), he did it in other cases -- taking a letter to the editor and retypesetting it as if it were a headline, under a newspaper's masthead, without their consent. And he lost a suit over false portraying of a fellow in "Roger and Me."
[UPDATE in light of comments on the issue: the suit appears to be for invasion of privacy, or to be precise, two subsets of that. (1) You can't use someone's image for profit (with certain exceptions) unless they consent and (2) you can't hold them out in a "false light" -- as being, or doing, or feeling, that which they aren't. The latter is a little like defamation, but doesn't involve actually *saying* something about them, and can include portrayal that is not necessarily defamatory. Classic example was Moore's loss over Roger and Me. He'd taken a guy, a friend of his, and filmed him at a "Roaring 20s" theme fundraiser for charity. Asked him to say good things about Flint. He took the resulting footage of what looks like a wealthy guy partying in costume and saying Flint is just great, has all thse cultural things, and spliced it next to footage of street people rummaging thru garbage. Not defamatory, because he never *said* "this guy is a crass, rich fellow who is indifferent to all the poverty in Flint," but the court found he certainly created that image.
Federal judge gives world-class butt chewing
The US Attorney for Montana just got a world-class butt-chewing over a felon in possession case.
The defendant had been convicted of what sounds like manslaughter ten years before. After his release, he developed a mult-million dollar construction business, became a bit of the pillar of the community, etc. In 2004, it was discovered that he owned guns, and (while the article is unclear) the state apparently moved to revoke/modify parole based on it.
Then the US Attorney (apparently having lots of spare time) filed federal charges as well. The judge's point was that the State had taken care of the matter, the defendant obviously is no street thug or menace to the community -- why is this a federal case? It didn't help that the prosecution had previously evaded the Speedy Trial Act by dismissing the indictment and then re-filing it to start the clock running all over again.
[UPDATE: link fixed...thanks...]
Permalink · prohibitted persons · Comments (2)
Books on firearm laws
Alan Corwin has a webpage for his company's books on Federal and State firearms laws, and now a book covering all States with "shall issue" permit systems.
Canadian government takes aim at gun registry
Via the Bitchgirls comes word that Canada's conservatives are holding firm on plans to abolish the registry, noting that it has a billion dollar cost overrun, is of little value against crime, and it looks like some of its contracts were sweetheart deals awarded without competitive bids. "People understand very well what we've done. . . . People realize a colossal sum was invested in a program that didn't work.''