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July 2006
Israpundit and the Seattle shootings
Israpundit has a take on the attack.
Settlement in NYC case?
Brady Campaign is announcing a "groundbreak settlement" in some of the NYC suits against dealers, but not saying what the settlement was. Seems a bit peculiar.
Seattle shootings
Clayton Cramer has an interesting post on what the media covers, and what it does not.
Additional New York City laws
Alphecca goes into the latest spate of New York City ordinances. NYC has again decided that its laws are, well, just too lenient and loose. Or, to be more cynical, its poliiticians decided that being seen as busy would be a good thing, and so they had to invent more regulations atop those that already exist.
Two caught my eye.
1. A ban on paint kits that could be used to make a real gun look like a toy. Exactly what these "paint kits" are and who is selling them a bit of a puzzle. I assume they aren't banning all orange paint.
2. A limit of one gun every three months. Hmmm... the idea of "one gun a month" was supposed to be stopping people from buying several guns in states with moderate gun laws and taking them to states with stricter gun laws. But does NYC really have a problem with people going there to buy guns legally and then smuggling them to ... Arizona and Nevada?
Light blogging this weekend
I've been pretty light, since I was working on the documentary film. It's now up to version 3.0. Looks like there are some transitions to be perfected, and then the audio rework (to be done by someone who knows what he's doing in the area. Whew!
Good old days ... weren't!
Just came across a study of Union war vets that caught my interest because I was there when it was being done.
Must have been 15-20 yrs ago, I was researching my own ancestors, and saw a researcher with a huge stack of files. Turned out she was performing part of the study. In the 1880s, as part of administering the first big pension system, the government created uniform reporting forms for the vets' health. Nobody knew much of medicine then, so vets put in for pensions any time their health turned bad -- it must have been related to all the illnesses they had in service, the months in the Richmond swamps, etc. Nat'l Archive had something like a million records, a database on 19th century health to be found nowhere else in the world.
The study outcomes indicate that early disease predisposed people to everything, including even cancer. Heart disease was much more common (probably heart valves ruined by rheumatic fever). Ditto with back problems (hard labor). Not only were lifespans shorter, chronic and disabling illnesses set in earlier.
And those were people healthy enough to enlist... 1/6 of potential recruits flunked the medical, at a time when almost anyone who could walk was being taken. (Once read a complaint from commander of II Corps that he'd been sent men who were "congenital idiots," men who had one leg visibly shorter than the other and could barely walk, etc).
More on "well regulated"
Saul Cornell and I just exchanged emails, and with his permission I'll post the gist of it in hopes of some discussion (his comments in italics, suggested by a comment):
>David,
>
>How do you reconcile your recents claim about the meaning of well regulated
with the following evidence
>
>Hamilton's discussion in the Federalist:
>
>"If a well-regulated militia be the most natural defense of a free country,
it ought certainly to be under the regulation and at the disposal of that body which
is constituted the guardian of the national security"
Hamilton was a fascist! (grin).
substitute "well-disciplined" for "well-regulated," and the above sentence still makes sense.
I rather suspect that (1) if we'd asked Geo. Mason if his independent Fairfax
militia unit (whatever it was called, the voluntary unit that was formed) was well-regulated,
he's have insisted it was, and (2) if you'd then said, well, that proves
the entire of Virginia can have a well-regulation militia on a voluntary, independent
of government, basis, he'd have said, hell, no!
I think use of the term bridged the gap, in that most of the time well-regulated
and well-regulated by government were synonymous.
Perhaps the use at the time emphasized the objective, whereas in modern speech it
would tend to emphasize the means.
I find the militia idea rather interesting, and quite complex.
1. Militia is seen as absolutely essential to keeping us free.
2. But it must be compelled by the government, since if given a choice, individuals
would find better ways to spend their spare time. Not unusual -- same could be said
of jury duty, and for that matter paying taxes.
3. But the government must be compelled to compel individuals (as by constitutional
requirements), since if given a choice, the government would prefer a standing army
anyway.
4. But let's no go too far about this! The government might even want a standing
army so badly that it will make the militia duty *too burdensome,* so that everyone
wants to abolish it and substitute an army (see Pat Henry in the VA convention).
By this point, things are getting rather complex in terms of logic.... we must have
a militia that is well regulated, but not *too* well regulated.
I should have counted:
5. Or the government might use conscientious objector exceptions to let a large
part of the population out of the duty and thereby get its standing army. And the
people might cooperate in this by nominal conversion to quakerism. (Elbridge Gerry
in the House).
>The use of the term in the Articles of Confederation
>"every State shall always keep up a well-regulated and disciplined militia"
>
>Or the discussion of well regulated liberty by John Zubly, a member of the
Georgia legislature:
>
> "well regulated liberty of individuals is the natural offspring of laws,
which prudentially regulate the rights of whole communities.? By contrast he noted,
?all liberty which is not regulated by law, is a delusive phantom."
He stole that from John Ashcroft... Actually, the entire Classical Republican movement largely centered around ideas, not so much of liberty, as of personal and civic virtue, which government and society must impose upon the individual. Man individually is corruptible and selfish (cf. Calvin). Jeffersonian thought saw the individual as naturally virtuous, and if anything, corrupted by government. While I find the Jeffersonian view more appealing, raising kids has given me a certain sympathy for the Classical Republican view.
>I think the suggestion that well regulated has nothing to do with regulation
and legal control is hard to square with either the context or the evidence properly
weighted. The Regulators who took up arms in Shays' rebellion were pretty well
disciplined, they were certainly not well regulated!
I doubt the 18th century drew a rigid distinction between the two, in a militia context. With the exception of Independent Companies, which were not the militia in the sense of everyone, well-disciplined and organized would have implied trained and organized by the State. It does seem a valid point that in modern speech, well regulated would imply the means (lots of government control, in terms of constraining choices) whereas in 18th century speech it implies the end (people who are trained and organized).
A bit of a digression: I've spent a bit of time studying 18th-19th century drill, which would have formed the bulk of the training. It appears that thru the 7 Years War, the British had no uniform drill -- each regiment's colonel chose his own. This created problems, noted by Wolfe, when the line advanced. Instead of everyone moving at (I forget the spec now) say 55 steps per minute, 22 inches per step, some regiments moved faster or slower than others, and the line got ragged. Throughout the period, people made advances that were the equivalent of inventing a new weapons system. Frederick the Great discovered you could move units on a diagonal. After the rifled musket became practical, and troops could be hit at greater ranges, speeds of advance increased. Doubletime was invented, and then the run.
Permalink · Second Amendment wording · Comments (4)
Carnival of Cordite No. 67
It's up!
Hilary's bust
No, not that one. A sculptor has produced a marble one. Whether she is going to sue over it is now unknown.
Via the Anchoress, who remarks "Hillary - who is an attractive woman - here looks like the love child of Jimmy Carter and Eleanor Roosevelt, but wearing the breastplate usually associated with Brunnhilda in Die Walkure! "
Friday fun
Off topic, but this Hizbollah Video Dating Service is hiliarious (via Volokh Conspiracy).
Geo. Mason's militia commission found
Rudolph DiGiacinto has found and posted George Mason's militia commission in 1756. Apparently it took a lot of digging in the Fairfax Court House records to locate it.
"Well-regulated"
Jon Roland's site has posted an interesting discussion of the meaning of "well-regulated." The cites from the Oxford English Dictionary span 1709 - 1894, and suggest "well-regulated" meant something close to "in proper working order."
(I think I've seen a 17th century usages in connection with troops, something about a city being lost to the enemy for want of a body of well-regulated troops in the area, implying that those in the region were ill-disciplined or disorganized). The use of an adjective with "militia" goes back at least to 1625, when Charles I announced he was striving for an "exact militia." To the extent that "militia" meant every man able to bear arms, just having a militia was meaningless ... every nation would have one of those, and "having people of military age is necessary to the security of a free state" might be true but rather obvious.
Permalink · Second Amendment wording · Comments (3)
Roger Sherman's version of the Second Amendment
One more nail in the coffin of "collective rights" comes from the discovery, in the 1980s, of a draft for a bill of rights by Rep. Roger Sherman, who, with Madison, was appointed to the committee which reported out the bill of rights.
Sherman's draft (detailed in a New York Times article of July 29, 1987) was found in the Library of Congress collection of Madison's papers. It contains guarantees of freedom of speech and assembly and other rights, but in place of the Second Amendment has: "The militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military Service shall not be required of person religiously scrupulous of bearing arms."
The historical point here is that the members of the First Congress knew how to write a "collective rights" amendment, that would only have safeguard State rights to control the militia, if they'd wanted one.
Permalink · Second Amendment wording · Comments (0)
Legislative history
ViaInstanpundit comes this commentary on legislative history. It's in regard to the Supreme's recent Hamdan decision... apparently, there were large parts of the "Senate debate" on the legislation that were inserted afterwards.
Not that that's anything new. Congresscritters "revise and correct" their remarks afterwards. As in rewriting them to say what they figure they should have said, or inserting entire speeches that were never given. I was present when House and Senate debated the Firearm Owners' Protection Act of 1986, and (1) Kennedy's speeches were absolutely incoherent, to the point where for minutes at a time you couldn't figure out what he was arguing... needless to say, the printed record shows them well-organized. (2) on the critical question of 922(o), inserted on the House side and construed to ban post-ban machineguns, the sponsor's "who could be against machineguns?" became "who could be against my bill to ban machineguns?"
And to think there's criticism of Bill Clinton's "it depends upon what your definition of 'is' is" testimony... in Washington, that's an apt response. You can have legislative debates that never occurred, with responses that were never given, and of course policy statements that don't reflect any policy that will ever be followed.
Anit-confiscation bill and its 14th Amendment implications
Dave Kopel has the scoop. (Via the the Bitchgirls).
Permalink · 14th Amendment · Comments (0)
The greatest gun commercial I've ever seen
It's online here. The gun store and range does check out (altho they may be out of business, at least their website is down). (For more on the actress' career, see "read more."
Continue reading "The greatest gun commercial I've ever seen"
NY ethics opinion on judges packing
The NY Advirosy Committee on Judicial Ethics has ruled: it's not unethical for judges to pack heat on the bench. They advise keeping it concealed.
(I'm told of one Texas judge who often cleans his .45 on the bench during boring moments in a trial).
TSA setting quotas for suspicious persons reports
Denver's Channel 7 has the story (non-video link).
TSA apparently has a written policy that each Air Marshal must report at least one Surveillance Detection Report (a fancy term for a suspicious person report) per month. Of course, being the subject of SDR can lead to being put on a watch list. But failure to make the quota is taken as proof that the Marshal isn't being alert.
Coming atop the stories about the Air Marshals being forced into a dress code ... for undercover work... of jacket, tie and dress shoes ... this is suggesting that TSA's hierarchy could use a good purge, and replacement by people who have some idea of law enforcement operations.
Kopel on gun bans and genocide
Dave Kopel has an article in America's First Freedom on international gun bans and genocide. An excerpt:
"Darfur is one of those places where the government has implemented Rebecca Peters principle that crime victims should not use arms to protect themselves. The Sudan Organisation Against Torture (a human rights group based in London) reported on March 20 about an incident which took place on March 7:
Two men “in military uniform attacked four girls from Seraif IDP [refugee] camp, Hay AlGeer, West Nyala, Southern Darfur. The girls were attacked whilst collecting firewood outside the camp at 11:30. During the attack, one of the men assaulted one of the girls and attempted to rape her. The armed man touched the girl’s breasts and attempted to forcefully remove her underwear. When she resisted, the man began to beat her. In defence she grabbed a knife that she had been using to cut the firewood and stabbed the attacker in the stomach.”
“Following the stabbing, the girls managed to escape and returned to Seraif camp where they reported the incident to police officers inside the camp. The police refused to file the case.”
One of the rapists died from a knife wound. “Following the news of the death, the officers immediately arrested the four girls inside the camp on suspicion of murder.” They face execution by hanging. The girls are: Amouna Mohamed Ahmed (age 17), Fayza Ismail Abaker (16), Houda Ismail Abdel Rahman (17), and Zahra Adam Abdella (17)."
Permalink · arms vs. genocide · Comments (3)
Self-defense with a muzzle-loader
Permalink · Self defense · Comments (4)
California's heads up, part two
A while back I noted a report that an LA County task force composed of deputies and ATFE agents was executing search warrants aimed at unregistered fiearms. I've since gotten a relayed email from someone who says they have relatives in LAPD, and a friend who is retired ATFE, and none have heard anything about this.
Just did a quick Google News search for California and Assault Weapon, and there's been no news of any relevant type. I'd assume that if this were going on, some politician or PR person somewhere would have boasted of it to the press.
Unless I can find some confirmation, I'd tend to see this as a false alarm. Looking over the original information, the hard info given is that (1) there is a gun task force, and (2) that it searched and arrested one person. The conclusion that it was part of a wider plan doesn't have any data given in support.
Judge Posner on Justice Douglas
Judge Posner (7th Cir.) has an article reviewing a book on the life and times of Justice Douglas.
Sounds like a scorching book. Although the author apparently rather liked Douglas, he wound up concluding that almost all of Douglas' supposed personal life was fabricated ... down to his Arlington Nat'l Cemetery tombstone, which says he was a veteran of WWI, when he never enlisted (another text, apparently based on an interview, says he didn't let polio stop him from enlisting. He never had polio, either).
One of my classmates clerked for Douglas toward the end of his time on the bench (he was massively disabled by a stroke, didn't want to resign lest Nixon appoint his successor, and wound up being wheeled to the bench in Pampers). Even before then, my classmate suggested that he was not easy to work with, crotchety, ungrateful, impatient, and quite an egotist.
(Via Volokh Conspiracy)
Permalink · General con law · Comments (0)
Article on NJ gun laws
The Philadelpha Inquirer has an article on how much harder it was for a woman reporter to buy a gun in New Jersey (which the paper of course regards as a good thing). Two strange things, tho.
1. Apparently you must give the police references, to whom they send a questionaire asking, among other things, if you are an anarchist. I suppose this is a holdover from the beginning of the 20th century, when at least some anarchists were throwing bombs instead of holding long debates on how capitalism and neighborhood associations could replace government. But you'd think a newspaper would be a bit skeptical about police asking about First Amendment matters...
2. The authorities were so considerate, they dropped by her house to make sure her husband approved of her having a gun. Now, you think, the newspaper would find that a bit odd. This isn't 1883, after all. Women can even appear in public in bloomers without being arrested, even in New Jersey. But she calls up the president of NOW and is told "It's a very thoughtful law," Gandy tells me by phone. "Yes, it makes it harder for people who aren't criminals or violent to get a gun. But, at the same time, it makes it harder for the people who are."
Permalink · media · Comments (3)
New Orleans -- citizens were deputized to defend hospital
Can't help but wonder why this didn't get media coverage:
"Hundreds of people were stranded in the hospital with no power to run lights or elevators and no running water. Anyone willing to carry a gun was deputized to watch the entrances as people broke into nearby buildings."
As far as the main story (doctor and two nurses arrested for allegedly killing patients with overdoses) goes ... it's pretty hard to picture the three just deciding, on a lark, to whack some patients during the story. It might be possible that they had some dying patients, not a snowball's chance in the infernal regions, and under those hellish conditions decided to let them go with no pain. When my ex was dying, if that'd been available, I'd have done it. Sometimes it's all over, and the only question is when and how painfully. In her case, cancer tumors were squeezing the breathing passages shut. No cure and no hope. An OD of painkillers isn't going to make any difference in the end. You can figure that anoxia will make them comatose, and it appeared to, but why not be sure?).
Permalink · media · Comments (2)
Is this a trend?
Ta Mok, captured in 1999 and accused in the Cambodian genocide, has died at age 80.
Just before they were ready to swear in the judges for his war crimes trial, set to begin next year.
He joins Slobodan Milosevic on the roster of war criminals who died of old age before a tribunal could decide the case. At least Milosevic made it through the prosecution's case, which took five years.
If the international types would like to convince us that trial is an effective response to genocide, they're going to have either to speed things up a bit, or else find some younger and healthier genocidal types.
Continue reading "Is this a trend?"
Lawsuit dismissed for lack of standing
Another firearms lawsuit is dismissed for lack of standing to sue.
Standing is a complex and chaotic doctrine. When I lectured a CLE seminar on bringing firearm law test cases, I always dealt with it first, with the warning it has a 75-80% kill rate, and you have to really do your preparation on it. Unless they really like your claim, courts are quick to say you have no standing because you aren't being prosecuted and can only speculate that if you break the law, something would happen. You have to be very creative here.
In this case, the guy had a DV conviction expunged under state law, but ATFE took the position that since the court record really wasn't destroyed (most "expungements" today are nominal -- the person gets an order saying it was set aside or expunged, but the conviction remains on record and can be plead as a first offense if he does anything again) it wasn't expunged, and he'd commit a felony if he possesses a gun. Court says -- no standing, it's an abstract dispute over what a law means, he can't show a sufficient probability of enforcement.
I'd suggest here an argument along the following lines: to buy a gun from a dealer he has to get a background check. Now, he can't really fill out the 4473 and put in NO. That'd make him guilty of a false record, a felony, and it's pretty much strict liability for that. He must say yes or no, and is guilty if the answer is wrong, even if he thinks it is right.
But... if he did do that, the NICS system would stop the transaction.
So he has an immediate injury, even if ATFE sent him a letter saying that, because he is such a nice person, they will never prosecute him even if he does buy. He can't buy from an FFL, period. It's not just that he fears prosecution if he does, the system is so set up that he cannot.
The other remedy I suppose would be to ask that the NICS take him off the list, I believe there's a specific route for that. Once they turn him down, he can take THAT administrative decision to court.
(Link comes via Gun Law News]
Tidbit on PETA
An interesting page on how PETA runs a pet shelter. For people who consider humans and animals morally equivalent ... let's just say most death camps had a higher survival rate.
Courtesy of This Is True mail-list.
UPDATE: The shelter is in Norfolk VA. I remember its policies making the papers when I was in DC in the early 90s. Apparently, the story is a bit bigger than I remember. They've contracted to prove euthanasia services to several counties.
Here's the story from a local TV station.
"From PETA headquarters in Norfolk Friday, Newkirk said that the dogs and cats did not suffer in their deaths, so there was no cruelty.
She did say that PETA's policy is to euthanize animals here and then cremate them, not throw away the bodies. So, an investigation has been launched into the actions of the two employees.
Ahoskie police arrested the pair Wednesday night as they disposed of some bags into a dumpster. Police said the bags contained the bodies of 18 dogs; 13 other animals were found dead in a white panel van that’s registered to PETA.
Authorities said the animals were alive with the pair picked them up from animal shelters in Northampton and Bertie counties. The two were picking up animals to be brought back to PETA headquarters for euthanization, PETA president Ingrid Newkirk said Thursday.
Police have said that Cook and Hinkle said the dogs would be found good homes."
And here's a Virginia newspaper report:
"Both Northampton and Bertie [counties] currently use PETA for those services. Officials in both counties said they were under the impression that PETA would first have the animals fully evaluated by a veterinarian and then attempt to find them a good home. If that effort failed, they understood that PETA would euthanize the animals."
There were some other stories indicating that injectible drugs for euthanasia were found in the van, indicating the dogs had been killed shortly after being picked up, and ones from websites with an agenda saying that PETA's reports to the state indicate they'd euthanized over 10,000 critters.
Permalink · animal rights and eco-terrorism
Takes the record for clueless story
It really does. We're told two men were arrested for illegally, possessing a "cop killer" gun (that 5.7 mm), then that Schumer is *trying* to have it outlawed, and finally "Between 1994 and 2003, 425 police officers were killed nationwide with a "cop killer" gun."
By gosh, we oughta find that gun and throw it in the ocean!
No retreat laws
I dunno. In southern Arizona at least, the cops might just say "Great job on icing that burglar.".
Some years ago a prosecutor told me he'd gone to the county attorney and asked why they were bothering to prosecute homeowners who had back-shot fleeing burglars. The county attorney responded -- because that's illegal. The prosecutor replied: we've just had three cases of that, back to back, with clear facts, and jury acquittals. If no jury in this county will convict for an act, that act is legal, for all practical purposes. So far as the jury pool is convinced, the real law is open season on burglars, no bag limit. His experience, by that way, was that an appreciable part of any jury pool has been victims of theft in one way or another (we're within 60 miles of the border -- a stolen car can be over the border before you come out of a movie or shopping mall -- so Lord help the thief when it comes to a jury trial. Anytime a thief vs. homeowner case somes to a jury, count on it, there are going to be some angry homeowners on the jury, and no indignant burglars.
Understand, it's legal here to have a holstered gun in a glove compartment, unlocked and loaded. I used to do that. I'm a reasonably careful driver, but in the last 15 years, have twice been stopped for moving violations. Being polite, I pointed out that I had a .45 in the glove compartment with the registration, and would the officer like to hold it? In one case, the officer then engaged me in a long conversation about whether he should buy a Colt 1911 clone, or spend an extra hundred dollars getting a real Colt? I suggested that my Charles Daly clone was utterly reliable and quite accurate. in the other, the officer suggested that I should get a CCW permit, they were very easy to get, and then I could take it with me concealed anywhere. We were fellow gunnies, he just had to write a ticket because I was a little too fast, now let's get down to the important thing, talking about guns.
Life in southern Arizona is good. I heard of one case where the homeowner caught the burglar, stuck a revolver about an inch, and began demanding why he shouldn't shoot him then and there. Then, as the officers arrived, he pistol whipped him a few times and said he'd kill him if he ever saw him again. The homeowner was the late Judge Meehan, if that gives you any idea of local justice.
Criminal brings knife to a gunfight
A ^#^(* stabs eight people, then finds someone in a mood to resist
"The attacker, chasing one victim into the store's parking lot, was subdued by Chris Cope, manager of a financial services office in the same small shopping center, Higgins said.
Cope said he grabbed a 9mm semiautomatic pistol from his pickup truck when he saw the attacker chasing the victim "like something in a serial killer movie."
"When he turned around and saw my pistol, he threw the knife away, put his hands up and got on the ground," Cope told The Associated Press. "He saw my gun and that was pretty much it."".
Permalink · Self defense · Comments (5)
Carnival of Cordite No. 66
The Carnival of Cordite is up.
Permalink · Festivals · Comments (0)
Local editorial
I don't much mind it when an editorialist displays his views and biases (views are what my friends have, biases are what my opponents have). It's clear that it's his opinion. I only find it annoying when news articles are written as opinion.
Local editorialist CT Rever made his views clear yesterday:
"Take away guns and the murder rate plummets."
"If I could pick and choose my constitutional amendments, No. 2 would be relegated to the trash heap."
The comments are interesting, too.
Permalink · media · Comments (1)
Saul Cornell on Stanford Review
Below, I'd mentioned the Stanford Review of Law and Policy. Just got an email from Prof. Cornell about it:
As far as Stanford goes, I did invite Bob Cottrol who was supposed to attend but had to back out quite close to the event. The conference did include Abby Kohn and Jim Jacobs, two prominent skeptics of gun control. The suggestion that the conference was one sided is really not correct. It is also worth pointing out that Adam Winkler's essay begins with the assumption that 2nd Amendment protects an individual right. While Kohn and Jacobs did not contribute essays, Winkler's is one of the most important in the volume.
Volokh Conspiracy
Via Instapundit: the Volokh Conspiracy is having DNS problems. If, like me, you're addict, you can find it here.
More on Great Britain
The Telegraph has the story.
"A big rise in street robberies across England and Wales rocked the Home Office last night only hours after John Reid announced a major overhaul of his embattled department, including a purge of top civil servants.
The latest crime figures showed an eight per cent increase in muggings, in particular in the towns and cities targeted just a few years ago by Tony Blair's 'street crime initiative'."
Permalink · non-US · Comments (1)
Suit against Mayor Bloomberg!
An FFL in Georgia, represented by former congressman Bob Barr, is suing NY Mayor Bloomberg, apparently for defamation.
I wouldn't put high hopes on the suit, but it is an interesting turnabout ... Bloomberg sues dealer in NYC, dealer sues Bloomberg in GA. At least the latter suit sounds like it may be within the court's jurisdiction, and is capable of a remedy.
UPDATE: Bloomberg labels the dealer's suit a publicity stunt. Pot, kettle, black....
Patron Saint of Handgunners
Just got a letter from John Snyder, of Citizens Committee for the Right to Keep and Bear Arms, mentioning a website he's created for the St. Gabriel Possenti Society.
In case you're wondering -- Possenti is a saint who, in 1860, held off a band of marauders by snatching a couple of pistols from them (they probably let their guard down, not expecting a monk to be a pistolero) and making it clear he knew how to use them. John has been on a campaign to get him recognized as the patron saint of shooters.
John enclosed copies of email between him and the publisher of the Catholic Standard magazine. Apparently he's been advertising in it for some months, and they now refuse to continue that unless he retracts a statement to the effect that the Vatican's involvement in small arms control was a "misguided secular political initiative."
NRA News
I'll be on NRAnews.com today about 5:20 EDT.
Colorado candidates
Sounds like some nasty politics in Colorado's governor's race, with gun law issues involved.
Permalink · Politics · Comments (1)
Googling North Korea's military bases
Off topic, but ... reader Kurt just pointed out there's a webpage where you can use Google Earth to check out satellite photos of North Korea's missile and other bases.
You have to be running Google Earth (free download linked on that page), which requires hi-speed, but it's a pretty impressive program even before this. If you have Earth, just download the link from the site and click on it.
Joyce Foundation at it again -- Stanford Law Review
I've posted before on how the antigun Joyce Foundation was using its millions to, essentially, rent law reviews as fora for second amendment attacks. It'd invested in symposium issues of the Chicago-Kent Law Review and Fordham Law Review, getting them to bring in outsiders as symposium editors, inviting only anti-second amendment articles, and then paying for copies to distribute to judges and legislators. Understand, most law reviews run on a shoestring. Authors are unpaid, editors get a pittance ($600 a year when I did it). Some tax-exempt place comes in and offers tens of thousands, it's unprecedented.
The spring issue of the Stanford Law and Policy Review is coming out with a symposium issue on, you guessed it, gun laws and the second amendment. So I did a bit of research and found this note on Joyce Foundation's homepage, under its 2004 grants:
"Ohio State University Foundation
John Glenn Institute for Public Service & Public Policy
Columbus, OH $125,000
To host a symposium at Stanford Law School on the connections between the Second Amendment and the Fourteenth Amendment, to publish papers in a major law review, and disseminate findings via the Web. (2 yrs.)"
Continue reading "Joyce Foundation at it again -- Stanford Law Review"
Permalink · antigun groups · Comments (5)
Second Amendment as a teaching tool
I was just reviewing the wonderful piece The Second Amendment as Teaching Tool in Constitutional Law Classes and memories of law school came back.
Back then (1972-75) we were on the end of the Warren Court decisions. Con law was full of fascinating issues. 14th Amendment incorporation, with Justices Black and Douglas filing separate opinions calling for complete incorporation, and Harlan, if I remember, holding for the pre-Warren tests. Was this right or that fundamental? How far does Miranda extend, and was it rightly decided? Freedom of speech, obscenity, fighting words. Stop and search, informant reliability, you name it.
Today ... the First Amendment is, what, hundred page opinions on election laws. Criminal procedure is ... apart from death penalty cases, pretty settled. The right to arms really is about the only place where there is anything interesting going on. As the authors suggest, it can be used to highlight originalism, 14th Amendment incorporation, methods of constitutional analysis, almost anything.
Even the Boston Globe
Even the Boston Globe is starting to get it. They just need to learn more about firearms and firearms laws before they write a piece on women and shooting ranges.
(Update. Chuckle. They ran a bit of a correction:
"Correction: Because of a reporting error, a story in yesterday's Living/Arts section about a Manchester, N.H., firing range mischaracterized Massachusetts gun laws. Residents with a Class A gun license may purchase semiautomatic weapons. Residents without a Class A license may shoot semiautomatic weapons at a gun range or gun club that holds a Class A license. Certified police firearms instructors or firearms collectors who hold a machine gun license may purchase machine guns. Also, the story should have made clear that US laws prohibit private ownership of fully automatic machine guns manufactured after 1986. The Uzi mentioned in the story was never illegal because it was made before 1986."
Permalink · media · Comments (3)
Heads up for Californians
I rec'd, via Joe Olson, an email sent by the Fifty Caliber Institute. See "read more" below.
[JT responds to Sarah in a comment for some reason stopped by my spam blocker. His response:
Sarah Brady wrote "Handguns should be treated like cars in that owners would be licensed and handguns would be registered."
I would like to see handguns covered by as FEW restrictions as cars. To wit:
no limit on how many may be purchased at one time;
no age limit to purchase;
no record of sale/purchase kept by government;
no registration or insurance needed to operate on private property;
able to take car from one state to another without restriction;
no limit on how many cars one person may own; owner-built cars are legal to possess;
driver's license allows one to drive cars in all states and DC - but not required to operate on private property;
individual states do not have unique and conflicting safety standards for cars;
safe operation taught in public schools;
etc.
etc.
etc.
While I would LOVE to see all gun laws abolished, treating handguns like cars would be a significant step in drastically reducing the amount of government control of handguns - I could settle for that as an intermediate step towards restoration of the second amendment.
Continue reading "Heads up for Californians"
An ... inventive approach
(via Prof. Joe Olson). Prof. Jim Chen has a brief PowerPoint on an article on which he's working (see works in progress, bottom of his page). It appears to argue that the 14th Amendment repealed the Second rather than incorporating it. Argument is that the 14th, by including clauses punishing former Confederates, outmoded the right to revolution which, he argues, is at the heart of the Second Amendment.
You have to understand that legal scholars love to search for a new argument, and that in some areas of legal scholarship you get to the level reached by art over the last century, where the core is not so much substance as showing off a new style. It's not so much "here is a detailed portrait from which you can gather, not only what the man looked like, but also read much of his personality," as it is "hey, I can depict a field of flowers with dots of light," or even "admire these vertical strips of color." Here, it becomes "look at how I can play with logic and wording and history" rather than "here is what the wording or history indicates."
The "right of revolution" was always a difficult logical concept. At its core ... if you succeed, you've exercised a right, and are a founding father. If you fail, you're a traitor. Hmm.. sort of like internal gun group politics. The problem with Prof. Chen's argument is that the Second isn't directly over revolution. Constitutional rights are about *what risks* we are willing to take to secure freedom. At some level, freedom of expression, association and arms, are about what risks the Framers thought acceptable, and necessary, to secure a free republic.
CCW permit holder shoots in self defense
In, appropriately enough, Williamsburg VA, a CCW permittee drops two bad guys.
Again, illustrative of the restraint of most such holders. He's grabbed, beaten, and robbed, but didn't fire until, as they were departing, one of them drew a gun. If anything, reports of self-defense I'm seeing suggest that the defender was too restrained.
Permalink · Self defense · Comments (1)
Washington Times: A Call to Arms
The Washington Times comments on the surge in that city's robberies and murders: "When it comes to combating our crime epidemic, the nation's capital might learn something from the state of Florida, where it's just been reported that the crime rate has dropped for the 14th straight year, to its lowest mark since 1971. "
(Blogging has been light this weekend, as I'm working on the documentary).
Utah AG opinion on guns in government buildings
Just came across an interesting Attorney General's Opinion from Utah. The president of the state Senate had inquired about the legality of a state Human Resources rule forbidding employees to carry firearms in government buildings or automobiles. The AG cites the state constitution, and its pre-emption law, in ruling that the rule was illegal and unenforcable.
Permalink · pre-emption laws · Comments (0)
Senate passes limit on gun confiscation during disasters
The Senate yesterday voted for the Vitter Amendment, an appropriations rider prohibiting use of federal funds to confiscate guns during a natural disaster. It now goes on to the House.
Vote was 84-16. You'd wonder that the 16 didn't even bother to pose as "we really don't want to confiscate anything, we just want reasonable regulation."
As to the 16, Bitch Girls notes that MassBackward should remember that he's among friends and can tell us how he REALLY feels.
UPDATE: Bitter's on a roll on this one, noting that Kerry managed one of his "I voted for it before I voted against it" moments.
Thought for Friday
It's interesting that in the second amendment context we have a LOT of data about how the Framers felt ... because the issue came down to nuts and bolts distribution of power in its clearest form. Debates in the ratifying conventions, state demands for a bill of rights, debates in the First House, motions in the First Senate, newspaper articles. Federalist 46, Madison arguing you can ratify the constitution without worry, because the militia will outnumber and can overpower any try at tyranny.
In the first amendment context we have much less information. Freedom of speech and press -- we have some statements about it being important in the abstract. It was not a big issue in the ratifying convention debates. Pat Henry and Geo. Mason didn't go to town on how the Congress might establish a religion or suppress publications. I suppose they figured that if the people were armed (or armed and organized) all other freedoms would follow.
The other provisions -- I can't remember a mention of search and seizure or self-incrimination in debates of the period. Ditto for self-incrimination, jury trial in civil cases, taking of property without compensation, etc.
Debate on Saul Cornell's "A Well Regulated Militia"
Oxford Press has posted a debate between Saul Cornell and Mark Tushnet, relating to Cornell's new book.
I've read (albeit quickly) "A Well Regulated Militia" and, much to my surprise, rather liked it. The research is good, the style is excellent. The worst I could say of it is that he plays down information I would play up (and he, of course, might say the same of me). Since Cornell is, to say the least, on the other side, I found this a pleasant surprise. I learned something -- which is rare, after you've studied an area for 30+ years. He draws an interesting distinction between Blackstone's summary of self defense and its American evolution, for instance (Blackstone said that a person must be at risk of death, etc., whereas the American rule, which he traces to a particular case, became one must *reasonably fear* death, etc.. The first would require proof of an actual menace -- altho I'd assume it'd allow proof of things the defender did not then know -- while the latter requires a reasonable fear -- so unknown matters are irrelevant, but reasonable perception replaces a demonstration of fact).
His thesis appears to be--
1. Yes, the 2A is an individual right. (The first quarter of the book could have come straight from Steve Halbrook's writings).
2. But it was one originally linked to militia duty (he goes against 14th Amendment privileges &immunities incorporation).
3. Hence (and here is a problem for him) it is subject to extensive regulation.
As to (1), I think it marks a collapse of the collective rights position. When an advocate for gun control has to concede this and discard collective rights, the main defenses have been breached.
As to (2), largely correct (altho he plays down indications to the contrary, that to the early Americans the concept of self-defense lumped togther defense against tyranny and defense against criminals). But most the discussions were along the lines of militia-tyranny. After all, they had just fought a revolution. Nobody in 1787 was much worried about the new central government would disarm people in order to let street thugs rob them. That would have seemed idiotic. Only in the 20th century would it seem to make good sense.
As to (3), there's the problem. As a historian, Cornell need not be overly concerned here -- it deals not with history but what use a legal system makes of history.
I am sure that if we examined the historical record relating to first amendment freedom of the press, we would find it was all in the context of political expression. And the record relating to the establishment clause would mostly relate to the risk of Congress establishing a national church.
But when Bork suggested that the first amendment could be seen as protecting only political speech (i.e., not pornography, defamation, etc.), and Meese suggested that the establishment clause did not forbid government actions that promoted *all* churches without discrimination, they were strongly, and I think properly, criticized.
[Update: Clayton Cramer comments on comments about lack of a professional police force -- since my antispam software for some reason stopped his comment, I've added it to "Read more," below]
[UPDATE: I think both were properly criticized because, in my experience, freedom is easily lost and much more difficult to regain, and the framers, in the bill of rights, were seeking only to stake out the most important freedoms. Hence an expressly-guaranteed right should be protected to its fullest. Something expressly stated should be protected as stated, and not curtailed by an argument that the framers didn't stop to consider (at least in the limited written evidence we have at hand) this or that application.]
Continue reading "Debate on Saul Cornell's "A Well Regulated Militia""
Permalink · Academic treatment · Comments (8)
Clip from the documentary film
I've embedded a 6 meg .mp4 clip of the documentary in the "read below" section below. It will look a bit distorted, since it's created for TVs (which have oblong pixels) rather than computer monitors (which have square ones).
This segment is from the beginning of the "collective rights" section, and deals with the question of the second amendment's wording in that regard. After this segment, it goes into the history of the National Guard (organized under Congress's unlimited power to raise an army, not under the restrictions of the militia clauses), then into the origin of the idea in a 1905 Kansas case (I found the original docket sheets -- it was an appeal from a $1 fine), US v. Miller, and later federal cases, before returning with another good thumping. And all the above (most of it not in this clip) is about 20 minutes of a 1:45 movie.
Continue reading "Clip from the documentary film"
Working on Second Amendment documentary
Posting has been a bit light, because I'm doing the video edits on the second amendment documentary film. It'll be feature-length (hour and 45 minutes in present form). It is looking VERY good. I just polished up the footage of Prof. Joe Olson, who was an armed civil rights worker in the south in the late 60s, and did more work on the 14th Amendment section. I'll put some clips up when I get time to compress them! The present structure is:
Early English right (mainly covered by Prof. Joyce Malcolm);
American right as it evolved from early colonies to beginning of Revolution (chiefly Joyce, Clayton Cramer, and Steve Halbrook);
Drafting of second amendment, and its early commentators (Prof. Olson, Steve Halbrook, David Kopel);
Total demolition of "collective right" theory (Prof. Glenn Reynolds, Gene Volokh, Nelson Lund, and Randy Barnett. And Prof. Denning on Miller case).
The Afro-American experience -- slave codes, Dred Scott, Black codes, 14th Amendment, the Klan, civil rights era. (Prof. Johnson, Steve Halbrook, others)
Present relevance of the right. Don Kates, Dave Kopel, Roy Innes, Prof. Reynolds.
I can tell you that even in draft form, it is more powerful than I'd planned, which was pretty powerful! I figure to have it available by September.
NYC proposes "gun offender registry"
In its continuing question to think of something else to do in the way of gun control, NY City is proposing a gun offender registry, similar to sex offender registries. Budd Schroeder emailed me the text, which is in the "read more" section below.
Continue reading "NYC proposes "gun offender registry""
Permalink · State legislation · Comments (0)
A hint on statute drafting
The AZ case on retroactivity of the castle doctrine law brings to mind a principle I've always followed in drafting a bill (which I wind up doing from time to time):
ALWAYS put in a clause at the end on retroactivity. If it affects anything that might happen in court, say specifically whether it only applies to conduct occurring after its date, or applies to cases brought after its date (even if the underlying conduct occurred before the statute's effective date), or applies to all cases then pending in trial courts, or applies to all cases, period. That way the courts don't have to puzzle out what the legislature meant to do. Given that the statute of limitations on criminal cases is about five years, and on civil cases about two (depends on the legal theory and the state), there is always a lot of room for situations where the conduct occurred before the statute and the litigation after. GIven that it takes years for litigation and appeal, there's lots of room for cases to be brought before the statute but still be pending when enacted. (There are of course some due process issues involved with retroactivity).
DC crime emergency
While Florida crime rates are dropping, the District of Columbia has declared a crime emergency "Alan Senitt, was attacked in the Georgetown area on Sunday, his throat was slit and police say the attackers attempted to rape his companion. It was the 13th homicide in the city this month. Robberies are up 14 percent, and armed assaults have jumped 18 percent in the past 30 days."
Permalink · Crime and statistics · Comments (2)
Vitter Amendment
Just rec'd an email:
During Senate consideration of the Homeland Security appropriations bill (H.R. 5441), Senator David Vitter will offer an amendment (# 4551) to prohibit the use of funds appropriated under this bill for the confiscation of lawfully possessed firearms during an emergency or major disaster.
After Hurricane Katrina, many residents legally armed themselves to protect their lives and property from widespread civil disorder. With no way to call for help, and police unable to respond, honest citizens were able to defend themselves and their neighbors. However, the then-New Orleans Police Superintendent issued orders for the confiscation of firearms, allegedly under a state emergency powers law. “No one will be able to be armed,” he said. “Guns will be taken. Only law enforcement will be allowed to have guns.”
For more information on this issue, please call NRA Federal Affairs at (202) 651-2560.
Florida crime rates dropping
Interesting data released today. Florida is, of course, the inventor of liberalized handgun concealed carry permits, of "castle doctrine" laws that allow lethal force in self defense without having to retreat, and a few other such measures.
Naturally, the Brady Campaign used Florida as their poster child for a gun-crazy state. Brady began an advertising campaign to warn tourists against entering this dangerous state. "The �Shoot First� law is a new law in Florida that police, prosecuting attorneys and gun violence prevention advocates worry may lead to the reckless use of guns on the streets of Florida cities." Sarah Brady intoned, ""The net effect of the new 'Shoot First' law in Florida is, unfortunately, precisely what we feared. People are dying who did not deserve to die." Just for good measure, Brady added "Gun violence in Florida could increase in 2005 because Congress failed to renew the federal assault weapon ban, which expired last fall, and Florida has no state law restricting assault weapons or rapid-fire ammunition magazines. Florida also does not require background checks at gun shows, does not require child-safety locks to be sold with guns, does not have any handgun safety standards to limit Saturday night specials and even forces police to let people carry hidden handguns in public."
Well, the Palm Beach Post reports that Florida's crime rates have fallen to the lowest level since 1971. "A telephone message left for comment after hours with the The Brady Center to Prevent Gun Violence in Washington, D.C. was not immediately returned."
You can get the report, in pdf format, here. It shows that, even though the state's population is growing, total homicides fell by 6.9%, and firearm homicides by 6.1%. Given the population increase, the decrease in rates would have been greater.
[UPDATE: Welcome, instavalanche! Take a look at the main page. Blogging has been a bit light since I've been working on creating the first Second Amendment documentary film. Starring, among other academics, Instapundit himself, not to mention Gene Volokh and Dave Kopel of the Volokh Conspiracy. All by coincidence -- when I started filming in early 2003, blog were unknown.
[UPDATE in light of comment: I know that NRA and Gun Owners of America rate candidates. I suspect that, come election time, you can find the ratings online somewhere, but don't have a url cite for it].
Are castle doctrine laws retroactive?
The Arizona Supreme Court is set to consider whether the recent castle doctrine law is retroactive -- i.e., does it apply to conduct that occurred before its effective date, but which came to trial after it.
Permalink · Self defense · Comments (0)
Gun activism in South Africa
Gun Owners of South Africa is organizing protests.
Reader Kurt Fremont comments (in a comment blocked for some reason by the spam-stopper): The place is run by a bunch of communist thugs essentially the same as American liberals. They want the criminals to be able to kill, rob and destroy the citizens' lives and have the citizens be powerless to fight back. You go, Gun Owners Of South Africa!
Permalink · non-US · Comments (0)
Walking fine lines in ILL
In Illinois, Gov. is trying to convince southern ILL voters that he really isn't antigun, despite.... welll, everything that he's done in office.
Permalink · Politics · Comments (3)
Carnival of Cordite No. 64
Carnival of Cordite No. 64 is up!
Permalink · Festivals · Comments (0)
Fox News on Canadian gun laws
FoxNews has streaming video on the Canadian experience.
Permalink · non-US · Comments (0)
PA plans special session on gun laws
Pennsylvania's legislation plans a one-day special session on September 26, aimed at gun law proposals. Items likely to come up are one-gun-a-month and exempting Philadelpha from state pre-emption.
Permalink · State legislation · Comments (2)
Future governor's race in FLA
The Miami Herald has an article on likely candidates for the governor's race in that state, and where they stand on gun issues.
Permalink · Politics · Comments (0)
Battle of the Somme
July marks the 90th anniversary of the Battle of the Somme, where the British lost 19,000 dead and 39,000 wounded in a single day. Before the fight was over, British and French casualties topped 600,000, and 12 square kilometers of battlefield were (temporarily) captured.
Might be a good time to read this article, which I wrote a few years ago, on NRA's role in keeping the US out of a similar WWI fiasco.
Permalink · NRA · Comments (2)
Dave Kopel on the UN matter
Dave posts on it at the Volokh Conspiracy.
"If a few hundred votes had changed in Florida in 2000, or if 60,000 votes had changed in Ohio in 2004, the results of the 2001 and 2006 U.N. gun control conferences would have been entirely different. There would now be a legally binding international treaty creating an international legal norm against civilian gun ownership, a prohibition on the transfer of firearms to "non-state actors" (such as groups resisting tyrants), and a new newspeak international human rights standard requiring restrictive licensing of gun owners. With a Presidential signature on such a treaty (even if the treaty were never brought to the Senate floor for ratification), the principles of the anti-gun treaty would be eroding the Second Amendment, through Executive Orders, and through the inclination of some courts to use unratified treaties as guidance in interpretting the U.S. Constitution."
Permalink · UN · Comments (0)
Amusing post on NY Times
PajamasMedia has an amusing post noting: (1) A NYT proxy statement that they believe they produce quality news, and that to the extent the public sees them as unreliable, the value of their stock may be negatively affected and (2) a chart showing how the value of NY Times stock has falled by 50% over the last two years.
Permalink · media · Comments (0)
Boston crime
massBackwards takes on the Boston Phoenix's reporting on Boston crime trends.
Permalink · media · Comments (0)
Carnival of Homeschooling seeking entries
The Carnival of Homeschooling is seeking entries and posts. You can submit here or here.
While we're talking about the 4473
I found an OMB report from 1997 that reported they'd found ATF was in violation of the Paperwork Reduction Act for a period of time, with its revised 4473:
Paperwork Reduction Act Violations Top of PageDepartment of Treasury/Bureau of Alcohol, Tobacco, and Firearms (ATF)
Title: Firearms Transaction Record, Part I, Over-the-Counter, and Firearms Transaction Record, Part II, Non-Over-the-Counter (ATF F 4473, Parts I and II (5300.9))
Violation: Unauthorized Collection
How Discovered by OMB: In February 1997, the public notified OMB that ATF had revised Form 4473, Part I, without OMB approval.
OMB Action: ATF's submission of the revised forms to OMB, requesting an extension without change. were designated by OMB as improperly submitted.
Agency Response: ATF resubmitted the forms to obtain OMB approval of the revisions. Treasury has assured OMB that ATF will reexamine its internal procedures to ensure future compliance with the PRA.
The PRA requires an agency, before it issues a form asking info from the public, to get approval from OMB and to publish that at the bottom of the form. Every so many years, OMB reviews the forms to see if there is any way the time spent filling them out could be shortened.
Back in the Reagan years I urged NRA and GOA to raise the question when the 4473 came up, and a long list of suggested deletions went to OMB. They did nothing back then (the guy in charge kept saying his wife had been robbed with a gun, as a hint that they were spinning their wheels with him), but there's surely someone else in there today. I just haven't found when the form comes up for renewal, yet.
Permalink · BATFE · Comments (4)
Interesting case on DV orders. Commerce & 2d Amendment
Just came across United States v. Napier, 233 F.3d 394 (6th Cir. 2000), which deals with a wide range of gun issues (and with most of them incorrectly, but what did I expect?). I've got the text in extended remarks below.
Essentially, it's a prosecution for firearms possession after a DV restraining order was issued (the guns having been purchased long before the order). He was also indicated for possessing ammo after such orders issued. Major rulings:
1. He challenges on due process grounds: court holds ignorance of the law is no excuse unless the law is exceptionally ambiguous or obscure. An earlier case had upheld a conviction because the notice of restraining order said that def. was not to possess arms -- here, he points out, he never was served with the orders. Court says that's not a distinction. Fact that a person knows there has been a DV order is enough to put him on notice that it might affect his gun rights.
2. Commerce Clause challenge: Court notes that the power extends to three categories, last being things having substantial relation to commerce. Court distinguishes Lopez: gun free school zone law had no commerce nexus, no statement that possession is only forbidden if you do X or Y in relation to commerce. GCA 68 prohibitions do contain commerce limitations. They apply only (and here court is a bit off) to guns that have moved in commerce. (Court does not explain why having moved in commerce at some point in history fits under subtantial relationship to commerce).
He also points out he got the firearm before he was subject to the order. I've mentioned before, on the face of the statute, this is not an offense. The "receipt" bar relates to a gun that has ever moved in commerce -- but he wasn't subject to the order when he rec'd it. The bar on "possession" ONLY relates to possession "in or affecting" commerce. So... the court ignores it. OK, the statute is valid because it has a commerce limitation, but the court isn't about to apply that limitation.
Court also disposes of a number of other Supreme's rulings suggesting that commerce clause limitations, well, actually exist. (This comes under the "we can't believe the Supreme Court meant that") approach.
3. Second Amendment is blown off with a reference to the Warin case. "Recent scholarship, however, does not provide a sufficient basis for overruling an earlier decision of this Court."
Continue reading "Interesting case on DV orders. Commerce & 2d Amendment"
Permalink · prohibitted persons · Comments (4)
Gun used in shootings came... from DC Police
A gun stolen from a DC officer has been linked to two gang shootings and a robbery.
Perhaps this time D.C. will sue itself?
Indiana goes to lifetime gun carry permits
Indiana requires permits for handgun carry, and has just created a lifetime permit.
As the article notes, police continue to track conviction records and compare them to the list of permit holders, and can revoke them if a holder is convicted (just as they do now--they don't let the permit run on for the full four years if a disabling conviction is found.) So you'd think the promoters of gun laws would ignore the change
But with its knee jerk reflex to anything resembling making gun laws easier on the gun owner, Brady Campaign complains that it is "ludicrous" and that "some gun owners ought to be checked out every four years."
Permalink · State legislation · Comments (0)
Australian study concludes gun law not working
An Australian study concludes that that nation's tightening of gun laws isn't working:
"While the level of lifetime gun and knife ownership had fallen in the three years to 2004 - possibly because of new controls - there had been an upsurge in more recent ownership.
"[New laws] clearly have not impacted on a subset of detainees because the proportional ownership of firearms in the year before interview increased over the same period," the study said.
"The illicit trade in firearms is a challenge for law enforcement because some individuals appear undeterred by the penalties associated with their illegal trade and ownership.""
Permalink · non-US · Comments (6)
John Lott has an op-ed in the Washington Times on the subject of mandating trigger lock sales.
"Accidental gun deaths among children are, fortunately, much rarer than most people believe. With 40 million children in the United States under the age of 10, there were just 20 accidental gun deaths in 2003, the latest year with data from the Centers for Disease Control. While guns get most of the attention, children are 41 times more likely to die from accidental suffocations, 32 times more likely to accidentally drown and 20 times more likely to die as a result of accidental fires. Looking at all children under 15, there were 56 accidental gun deaths in 2003-- still a fraction of the deaths resulting from these other accidents for only the younger children.
Given that there are over 90 million adults in America who own at least one gun, the overwhelming majority of gun owners must have been extremely careful, even before the 2005 law, or the figures would be much higher."
A bit windy here today...
I took this a block west of my house. Power was out for a few hours, as might be expected.
Great targets
Now, this is a heck of a target!
Memories of how it all began
Working on the documentary brings back some memories of how the 2nd Amendment reawakened.
1974-75: I'm a law student, writing my way onto Arizona Law Review, with an article that concludes gun control doesn't work. My editor, Mark Collins, says it's all policy material -- I need a legal theme for it to seem more appropriate for a law review. How about the Second Amendment? I respond there isn't much to be said on it -- it's National Guard, that sort of thing. He prods me, I do some research.
Understand, at that point in time there were maybe 3-4-5 articles on it, over the past twenty years, and most of them not worthy of notice. But I do some digging and conclude there is a solid argument to be made for an individual right. I research and write it up.
The editor in chief kills the article. Reasons given are flimsy. I get it published over at Chicago-Kent Law Review (and am given an editorship at AZ L Rev anyway). This is 1975.
In 76 or 77, Dave Caplan brings out an article on the Amendment. Somewhere in here Steve Halbrook commences his very productive writing career. Don Kates comes in somewhere around 1980, I think leading off with his book Restricting Handguns: The Liberal Skeptics Speak Out, and then going into articles. Bob Dowlut starts writing on state declarations of rights.
In the early 80s, we're all exchanging drafts of articles and discoveries. I do a stint in Washington, get into the Library of Congress, where I find Lord Somers' notes on the 1689 British declaration of rights. Often the discoveries are interlinked. Steve discovers Tench Coxes' article, I discover that Madison wrote him a thank-you note. BUT all of our articles are in reviews with modest standing ... Case Western, Northern Kentucky, that manner of thing.
1983: Kates gets an article in Michigan Law Review. It's one of the top ten, maybe top five, reviews in the country. Scholars may never see an article in the other reviews, and if they see it, will skim it. But articles in the top reviews get read. (It also has a side-effect, when a student named David Kopel is assigned to verify all its citations, and becomes interested).
We continue publishing away. In 1985-86, I get two into the Harv. Journal of Law and Public Policy and the Journal of Law and Politics (they're linked on the sidebar). I esp. liked the latter one, but they're not big time reviews. Dave Kopel commences his own, and very productive, writing career. Steve gets involved with the 14th Amendment angle and publishes on that.
Late 1980s or early 90s: Prof. Sanford Levinson of Texas, a very big name in Con law, after being intrigued by Kates' article, publishes in the Yale Law Journal, I think, and William van Alstyne then of Duke, another big name, publishes in the Duke Law Journal. Now you have big names AND big reviews involved. Akhil Amar of Yale follows (with articles on the Bill of Rights and 14th Amendment in general, but concluding there is a manner of individual right there).
By around 2000, the individual rights view is being described as the "Standard Model" of the Second Amendment (and the term is first applied by an opponent of the individual rights view). Quite a turnaround in 25 years!
Home invasion in Great Britain
"Everyone is scared witless. There is talk of a cannibal attack...." I suppose that's only understandable.
Permalink · non-US · Comments (0)
Busy on the documentary
I'm spending the 4th in proper style, doing the video edits necessary to create a second draft of my right to bear arms documentary film. I'm quite pleased with it. The folks appearing in it include Professors Joyce Malcolm, Glenn Harlan Reynolds (Instapundit), Gene Volokh (the Volokh Conspiracy), Randy Barnett, Brannon Denning, Nelson Lund, Daniel Polsby, Joe Olson, Nick Johnson, Gary Kleck... not to mention Steve Halbrook, David Kopel, Clayton Cramer, Don Kates, Sandy Froman. I'm sure I missed a few in there.
General organization:
Intro & how RTBA reawakened as scholarly issue after 1975: 6 minutes
Origins of the English right: 8 minutes
Early colonial laws: 6 min.
Revolution, early state bills of rights: 7 min.
Constitution, ratification battles, drafting of 2nd Amendment: 18 min.
Early commentaries: 9 min.
Analysis of collective rights: 13 min.
Afro-American experience, Dred Scott & the 14th Amendment: 29 min.
Utility of the right -- genocide, self defense, resistance: 22 min.
I do have to move fast (and leave material out) to keep within the target of 2 hours. One amusing thing is that several of the people filmed now look rather unlike their film image. I started on this in early 2003, and we've all aged 3 1/2 years over that span. Some of us have acquired grey hair in the meantime, or lost or added a few pounds.
I think, BTW, that it'll be ready for distribution around early September.
[UPDATE in light of comment--not yet! I'm editing the second draft. After this, I polish it into final. Then I get a fellow who knows a lot more about audio than I do to polish the audio. Then (maybe mid August) I'm ready to get it replicated. I'll be very glad when it's done. It's been 3.5 years of work. Or maybe 30+ years (I published my first law review article on 2A in 1975, while still a law student, and have worked on it ever since. But I'll throw a few teasers in the extended remarks below.]
Continue reading "Busy on the documentary"
4th Amendment ruling
The 6th Circuit has ruled (pdf) in a case involving search of a bonded warehouse area used by an FFL who was involved in illegal sales.
As I read it, the core facts are: an ATFE agent got a search warrant for the area. The warrant, in the section where the goods to be seized should be listed, simply said "see affidavit." The affidavit did describe the guns, but it was under court seal. When agents showed up, the owner of the warehouse was shown the warrant and protested that the 4th Amendment requires particular description of the matters to be seized, the warrant says see the affidavit, and the affidavit is under seal.
Afterwards, he bought suit for a Bivens constiutional tort. The trial court dismissed on qualified immunity grounds (you can't win a Bivens case unless the constitutional requirement involved was "clearly established" in law at the time). A panel of the 6th Circuit reinstated the suit, noting that the 4th Amendment requirement of specificity has been around for 200 years. Gov't moved for rehearing en banc, and this decision is the result, with the entire circuit ruling that the dismissal was proper (and the panel wrong). A quick read indicates the basis is (1) the warrant plus affidavit does describe the items, and the judge issuing it thus knew what he was being asked to do (an earlier case involving a warrant that didn't mention the affidavit is distinguished); (2) while showing the warrant to the person being searched is required by rule, that doesn't necessarily mean that the affidavit needs to be (note a bit of a circular argument here); (3) the agents did perform the search in a reasonable manner and took only the described items; (4) even if there was a requirement that the warrant itself describe the items without reference to the affidavit, that particular requirement was not "clearly established" in law.
Two judges concur on basis that this was a Fourth Amendment violation, but the requirement was not clearly established, and four dissent.
Permalink · General con law · Comments (2)
Secessionist blog
Carol Moore, whom I knew from the days when she and I were involved in the Waco matter (she authored a book on it, and kept track of the incarcerated Davidians) has a new blog devoted to secessionism. Since she lives in Washington DC, her local case may be an uphill battle. On the other hand, since most of us wish that DC were not part of the Union, it may have substantial nationwide support.
Defunding trigger lock sales requirement
Brady Campaign is bent out of shape over the House rider that prohibits use of appropriated funds to enforce a requirement that guns be sold with triggerlocks.
Note that a funding restriction of this type isn't too useful in itself. It just means no enforcement is possible during the next fiscal year. But since the statute of limitations is five years, I think, anyone who sells without a lock will have to worry about whether the restriction *is* funded next year, and they could go back and prosecute. On the other hand, budget riders, once put on, tend to keep repeating. The ban on use of funds for giving "relief from disability" to own guns is probably still in there, after a decade or so.
A modest proposal to end the straw man issue
I suppose I'm dating myself here, but I once obtained, via FOIA, ATFE records showing that back in the early 70s an agent had recommended adding a box to the 4473 asking "are you buying this gun for someone else?" The proposal was turned down because it might impede making cases! They loved straw man cases, and this might just end a lot of them. Then in the 1990s, I think, the agency did add a box to the 4473 along those lines.
Here's my proposal. It's simple. The straw man problem is logically insoluable. As the 4473 notes, you can buy a gun as a gift for someone else, but can't buy it "for" someone else. How do you draw the line between the two?
Simple solution: the problem arises because the 4473 only has one blank for the buyer. You can title a car or a house to two, three, however many people, but you can't title a gun, as it were, to anything but one person.
Create, oh, a 4473A form that has *two* blanks for the buyer. If a person tells the dealer that they want to buy a gun for someone else, then both people fill in the blanks, and both get a background check run. You can fine tune the procedure in a couple of areas. First, buying for an underage person -- it's allowed, even tho the underaged person cannot buy from a dealer directly -- so tune the form for that. Second, might want to make provision for a situation where the other person isn't physically at the dealer's premises at the time.
Permalink · Gun Control Act of 68 · Comments (2)
Big mess with seized guns in Mass.
Here's the story. Seizures of guns from people subject to Domestic restraining orders has swamped police storage areas in the state, so they have contracted with a warehouse (which bills the gun owner, not the police). Where the guns go from there appears to be a bit of a mystery. It appears that the warehouse may be taking guns on which the owner doesn't pay the storage fee and selling them, but no one knows whether or how many. A board of some type has come up with proposals to improve matters, but the Secretary of State refuses to implement its ideas.
Apparently, the state believes in strictly keeping track of guns ... except when it's the one who has them!
Third Amendment
I've decided to branch out, as this article in the Arizona Daily Star should show. There's so much competition in the Second Amendment field, with Steve Halbrook, Dave Kopel, Richard Gardiner, Don Kates, Chuck Michel, etc. But there's NOBODY doing Third Amendment cases, and my two coauthored pieces are about the only scholarship in the field.
Of course, cases may be a bit hard to find. In the entire 20th century, one occurred, when someone tried to put up National Guardsmen, in town to deal with a prison riot, up at someone's house.
Permalink · General con law · Comments (1)
New Kopel paper
Dave Kopel has a new paper up (pdf). He, and coauthors Paul Gallant and Joanne Eisen, show how U.N.-backed gun confiscation programs in Kenya and Uganda have given their supposed beneficiaries murder, torture, and homelessness.
(I've posted the link as given in an email -- for some reason I'm having trouble getting thru to his website just now).
Permalink · arms vs. genocide · Comments (0)
Great Kozinski opinion (non-gun)
Defenders of Wildlife v. US EPA (June 8, 2006). Apparently a panel (3 judges) of the 9th Circuit ruled that when the EPA transfers Clean Water Act authority to a State, it must not only satisfy the nine criteria listed in the CWA for such transfer, but also conduct full Endangered Species Act inquiry and process. EPA moved for rehearing en banc (by all the judges ... or actuallly by half of them, under Ciricuit rules), but didn't get it. Kozinski dissents from the denial. It's all rather technical, but his first paragraph is worthy of admiration:
"Less than two years ago, the Supreme Court unanimously reversed our interpretation of the National Environmental Policy Act (NEPA). See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004). Tone-deaf to the Supreme Court's message, the panel majority in this case interprets the Endangered Species Act (ESA) in precisely the same incorrect way we interpreted NEPA, dramatically expanding agencies' obligations under the law. Along the way, the majority tramples all over the Fish and Wildlife Service's (FWS) reasonable interpretation of the ESA, deliberately creates a square inter-circuit conflict with the Fifth and D.C. Circuits, and ignores at least six prior opinions of our own court. Finally, the decision is one of considerable importance to the federal government and the states of our circuit. This is precisely the kind of case we should take en banc to set our own house in order."
Judge Kleinfeld's dissent is remarkably concise. He writes to show "how simple this case should have been." "[T]he statute is mandatory. Congress commands that the agency "shall approve" state programs "unless" one or more of nine conditions are not met. The "shall/unless" formula makes the nine condition list exclusive, and courts cannot add conditions to the list.*fn6 The language has the look of a careful legislative compromise necessary to get the votes for passage.The statute leaves no room for conditions ten, eleven, or whatever else we may think Congress should have added."
Then Judge Berzon writes a concurrence, complaining that other judges, ahem, have started writing dissents from denials of rehearing "as a matter of routine" that unfairly portray the panel decision as filled "with rampant error." Kozinski here is "accusing the panel majority of all manner of judicial perfidy."