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July 2009
Nordyke taken for en banc review
In Nordyke v. King, a 9th Circuit three judge panel ruled that the 2A was incorporated and applied to the States (and also that the regulation in question was reasonable). Neither party applied for en banc review, but at least one judge did (as the rules allow). Today the 9th Circuit issued an order stating that it would review the decision en banc (meaning that a majority of active duty judges had so voted), with argument to be set for week of Sept. 21 (quite rapidly for this sort of thing).
En banc review is traditionally review by all the judges of a circuit, not just a 3 judge panel of them. But the 9th is so large in terms of judges (27 active duty and 21 on senior status) that under its rules en banc is by a panel of the chief judge and 10 active duty judges picked at random.
The 9th has had at least two major anti 2A cases (Silveria and Hickman) and one major pro 2A case (the Nordyke panel). The requirement that the en banc panel be composed of active judges takes several of the judges on those cases out of the running. I could those remaining in as split 2-2. (Kozinski, as chief judge, is always in, thank goodness!):
Reinhardt -- anti, wrote Silvera.
Fisher -- anti, joined in Silvera
O'Scanlainn -- pro, wrote Nordyke.
Gould -- pro, joined in Nordyke.
Permalink · Nordyke v. King · Comments (12)
Airline shipment, and connections thru antigun States
Bloomberg's battle against flintlock muskets
Story here. Brooklyn man has flintlock replica, doesn't even own powder and ball for it. NYC rules apparently exempt muzzle loaders, but NYPD is flipping out, investigating him and the gunsmith who made it, detectives ordered by those higher up to pursue the case.
Hat tip to reader Nick Lidakis...
Chicago gov't going trigger happy?
Chicago is instituting a major change in LE policy, allowing use of deadly force against felony suspects fleeing in autos. (The article does not explain the basis for a distinction between suspects fleeing in autos and those fleeing on foot, or whether a motorcycle counts as an auto).
I haven't time to research today, but as I recall Tennessee v. Garner rejected the general power to use lethal force to stop a fleeing felon and limited LEO lethal force mostly to parallel civilian use of lethal force, i.e., defense of self and others. I suspect that any Chicago civilian who back-shot a fleeing car thief would be the subject of a quick indictment.
Hat tip to reader Ash Mayfield ...
Permalink · Self defense · Comments (10)
Bear arms in self defense
Story here. A few years ago the Mt. Lemmon area, a 45 minute drive from here, was essentially besieged by its bear population. Particularly attractive targets (a pie shop) put metal grates on windows and doors, only to have them tear thru walls.
Hat tip to reader David Hustvedt, who is from the area.
Permalink · Self defense · Comments (7)
Major ATF incident
Stories here and here. Core event: Vince Cefalu, an ATF supervisor, and lead supervisor on the case, has testified that investigators perjured themselves to get a wiretap order, and that when he objected to this, he was taken off the case.
The article also cites to CleanUpATF.org, a very interesting website with very interesting data. I'd suggest taking a look.
Permalink · BATFE · Comments (9)
NRA to count vote on Sotomayor
Story here.
SCOTUSBlog on 14th Amendment cases
"Might It Happen? Slaughterhouse Overruled?".
Permalink · Chicago gun case · Comments (9)
Thune amendment and Congressional Kabuke
Story here.
Yep, it gets like that. People voting your way who are committed to switching their vote the other way if it makes a difference, folks asking your opponent if they can support you without danger of actually making a difference, and votes switched after the outcome is known.
Thune amendment fails, but gathers a majority
Some manner of procedural requirement meant that the amendment had to get 60 votes, and it fell shy by a couple. But the vote was staggeringly lopsided -- 58 - 39. Story here; you can get the roll call here.
Local media on teaparty protests
A letter to the editor challenged the local paper's ignoring the "tea party" protests, and the newspaper responded: "As a general rule the Star does not cover protests. There are exceptions, but we make those decisions based on the uniqueness of the event, the anticipated turnout and the resources we have available."
In other words, they don't cover protests, except when they do. E.g.,
"Rosemont Mine Protest in Downtown Tucson Ends" -- that was a big one. "About 30 protesters gathered Downtown Tuesday morning to demonstrate against development of the Rosemont mine ended after about an hour."
"DES Cuts Spur Protest By More Than 300".
"300 'join hands' to protest school cuts" (There were four articles on these protests).
"Protests Yield Entrant Policy Change
Permalink · media · Comments (2)
Tucson home invasion
Around here, home invasion robbery stories usually end with a description of the robber's gunshot wounds. This case was a bit out of the ordinary. One of the robbers was a correctional officer. While they were pistol whipping the victim, his neighbor came outside and challenged them, and they shot at the neighbor.
The neighbor's son had a rifle and settled that affair quickly.
Permalink · Self defense · Comments (4)
VPC claims re: permit holder's crime
John Pierce has an excellent response.
Permalink · CCW licensing · Comments (3)
Thune Bill / amendment to be considered this week
Story here. While the story is a little unclear, it sounds as if his proposal is to have national reciprocity, so that person with a permit in one State can carry in other States, and it seems to provide that if your State doesn't require a permit for (open or concealed carry? unclear) then it wouldn't required elsewhere. It'll likely be offered as an amendment to the Defense Authorization Bill.
Whatever it provides, it has Schumer foaming at the mouth, so it must be wise policy.
Oldest man, WWI vet, dies
RIP Henry Allingham, at age 113. Last survivor of the Battle of Jutland (naval, 1916), saw service at Ypres (land, 1917), had 14 great-great-great grandchildren.
When he was born --
Victoria was queen;
Winston Churchill a 20ish fellow who'd never held office;
Grover Cleveland was president of the US.
He attributed his longevity to "cigarettes, whisky and wild, wild women."
AZ: no retrial for Harold Fish
Story here.
"Rozema said that two developments prompted his decision not to retry the case. First, the Arizona Court of Appeals overturned Fish's conviction. ... [T]he appellate court decided the jury was not instructed properly as to what constitutes "unlawful physical force." The court also decided the jury should have heard evidence that Kuenzli was known to act violently when confronted about dogs in his care.
Second, Gov. Jan Brewer signed a bill into law Monday that applied retroactively to the Fish case a new law on self-defense. Whereas Fish had to prove at his trial that he acted in self-defense, it is now up to the prosecution to prove at trial that Fish did not act in self-defense."
Permalink · Self defense · Comments (9)
Judging and empathy
I think it was proper in this case. A judge inclines toward probation in a felon in possession case, the possessor being discovered after he mishandled a gun and blew one of gonads off.
Legal guns in DC
Story here. After a year of legal registration, none of the firearms has been used in a criminal offense and, for that matter, none in a self defense incident.
Permalink · Heller aftermath · Comments (4)
Sotomayor hearings, pt. 2
Randy Barnett, at the Volokh Conspiracy, posts some of the transcripts, which I find... well, incoherent. The type of answers that would draw zero points on a first year Con Law exam.
Sen. Feingold: d like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?
Judge Sotomayor: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.
In other words, my understanding of those cases is that they were cases....
Sen. Feingold: But what would be the general test for incorporation?....
Judge Sotomayor: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine.
?????? Wuzzat mean?
Judge Sotomayor: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent.
Now that's startling!
AZ allows limited CCW in alcohol serving establishments
Story here. Governor Brewer signed legislation modifying the previous absolute ban on carrying in any establishment that served liquor (in any amount). Under the new law, a person could carry in such a place if (1) they personally consume no liquor; (2) they have a CCW permit; and (3) the establishment doesn't post signs forbidding carrying.
In the meantime, the governor of Tenn. just vetoed a similar bill. Strangely, the [UK] Guardian reports that he signed the bill. Say Uncle reports that the governor did sign a bill letting off duty LEOs carry in such establishments, "Also, note the press coverage. When it’s for police they refer to establishments that serve alcohol. When it’s for handgun carry permit holders, they’re all bars."
Permalink · CCW licensing · Comments (6)
Sotomayor hearings
Instapundit has a good roundup, of which the link to Snowflakes in Hell is quite interesting.
Don't have the energy or time to watch the hearings myself, still recovering, and catching up. And considering that the hearings began at 10 AM yesterday, and Sotomayor herself didn't get to speak until mid afternoon (the missing hours being devoted to speeches by committee members), it would have taken both time and energy to watch.
ATF issues guidelines on receiver sales
Pdf here. Gist appears to be that a bare receiver is a firearm, but not a rifle, shotgun or handgun since it can be made into any of them (which I think may be true in some cases, but not in most). Ergo, (1) a bare receiver must be logged in by an FFL and cannot be sold to a nonresident, (2) since it is not a rifle or shotgun it cannot be sold to a person under 21, but (3) since it is not a handgun, either, multiple sales need not be reported.
Permalink · Gun Control Act of 68 · Comments (15)
Nelson Lund on incorporation and Judge Sotomayor
Prof. Lund has an op-ed here, and a law review article on incorporation here.
Permalink · 14th Amendment · Comments (5)
FLA law on no tolerance
Florida enacted a statute that at least requires school boards to review "no tolerance" policies.
"In Hernando County, an 11-year-old girl was suspended for bringing a plastic butter knife to school. A student in Brandon was suspended because a calculator he brought to school was equipped with a "knife-like object.""
It's strange that while certain governmental units are enthusiastic about "no tolerance" in relation to their enforcement against individuals, they don't appear at all enthusiastic about having it applied to them -- i.e., they rush to plead qualified immunity ("even if we violated his constitutional rights, we shouldn't be liable since they were not 'clearly' established" -- i.e., we probably wouldn't have known we were doing wrong).
Gura contra Wilkinson
Here's Alan Gura's response, scheduled for UCLA Law Review, to Judge Wilkinson's anti-Heller article. Wilkinson argued that conservatives should reject Heller -- implicitly using his own definition of conservative as someone strongly disfavoring courts' striking down of legislation on constitutional grounds. (Personally, I suspect that definition evolves out of a relatively small number, whose beliefs were created against the background of the Warren Court's ... well, beating up their views during the 1960s and early 1970s. Losing hurts, and in reaction they challenged the legitimacy, not of the arguments employed, but of the entire idea that courts ought to enforce the Constitution (or at least do so without the most extreme reluctance).
BTW, to download Alan's article: go to the link. You'll see a one-para abstract. Above the title, click on Download. A new page appears, so like the former one that you'll probably miss fact that it's new. But just below download bar is a button for "SSRN." Click on that and you'll get the download. No idea why SSRN makes it this hard.
Amicus briefs in Chicago case
Amicus briefs have been filed at the cert. stage (i.e., asking the Supreme Court to take the case, not directly arguing who should win, which can be briefed later if the Court does take it) have been filed. In pdf form, here are:
The brief of 33 States, authored by the Texas Attorney General. (I note the AZ atty gen did NOT sign on, don't believe he signed onto the Heller State amicus, either).
The separate brief of California, authored by AG Edmund "Jerry" Brown. (A friend who knows him pretty well says, BTW, that while he's on the liberal left, it's not a campaign ploy; he's never seen much sense to gun control).
The brief for Institute for Justice and Cato Institute.
Alan Gura says there is also a brief from Gun Owners of America, but it's not yet online.
Hat tip to reader Alice Beard....
Permalink · Chicago gun case · Comments (5)
Harold Fish conviction reversed
Pdf of AZ Ct of Appeals ruling here. To shave a long opinion to its core--
Fish was hiking, saw another guy, waved, other guy's dogs charged him, he fired a warning shot. Then the other guy charged him, crazed look in eyes, windmilling arms and shouting threats. Fish shouted to halt and, that having no effect, shot him fatally.
Major issue on appeal: trial court refused to allow testimony from several other people that other guy, upon confrontation relating to his dogs, had rushed at them, crazed look in eyes, arms windmilling and shouting threats.
Ruling: general rule is that self defense must be based on reasonable fear, and reasonable fear cannot be based upon something the defender doesn't know (in this case, that the guy tended to go off balance with regard his dogs and behaving in a threatening way). Arizona case had allowed court to admit unknown events, in its discretion, but adoption of the federal rules of evidence (which have no such provision) as the state rules ended that. HOWEVER, the prosecution, by arguing that Fish's claim that other guy behaved so crazily was ridiculous, opened the door to Fish bringing in evidence that that was, in fact, how the guy had behaved in the past. Conviction reversed and sent back for new trial.
UPDATE: yup, this was the case that led to a change in the statutes on self defense -- previously self defense was an affirmative defense, meaning that (like insanity, etc.) the defendant had to prove it, by a preponderance of the evidence (more likely true than not). During this case, the legislature modified the law so that justification defenses, including self-defense, had to be disproven, beyond a reasonable doubt, by the prosecution. Problem was the legislature gummed it up, and forgot to include a clause making the change retroactive, and the court held that the legislature *can* make a liberalized defense retroactive, it must give some indication of this intent, there was none here, ergo Fish would be tried under the law as it existed at the time of the shooting. There's now a move to pass a statute that would clarify a retroactive intent.
"Reasonable fear" ... may write a separate post on this. It's rather strange, I can't offhand think of another defense where what matters is what you *think*, but not how things *are*. To prove self-defense you must prove a reasonable fear that the other guy was going to inflict death or serious bodily harm. At least, that's been the US standard since the early 19th century. So....
Guy bashes in your door one night, comes at you, you shoot in reasonable belief he means you serious harm. Turns out he was staggering drunk, thought he was breaking into his own house. You have a defense since you feared serious harm and it was reasonable to do so (even though in fact you may not have been endangered).
Officer stops guy, guy has crazy look, reaches for something, officer shoots. Afterward it turns out guy has a murder warrant, killed last officer who stopped him, clearly did mean to kill this one, too. BUT officer didn't know that when he shot. In practice, he'd not be prosecuted, and the jury would walk him anyway, BUT in theory, were it tried, officer would only be allowed to prove the basis of his fear -- that guy looked crazy and seemed to reach for something -- and jury would only consider whether those two facts were sufficient cause to shoot him. That he in fact was a fleeing cop killer would not be allowed in evidence. The officer didn't know that, so it could not have formed a basis for him to fear for his life.
I don't say the above makes great sense, logically, but it's the way the law works just now. I've had proposals for statutory amendments to cure it, and may write an article on the subject.
Permalink · Self defense · Comments (19)
Government drops charges against Kwan
David Codrea has the story, here.
Short version: Albert Kwan is a legit machine gun collector. FBI or ATF (reports are unclear) raided his house and found two combination holster/shoulder stocks for certain H&K pistols. Kwan owned a registered, full auto H&K of that type; since it was already registered as a full auto, owning or attaching a shoulder stock would be no legal problem (you don't have to register a gun twice because it is full auto and has a short barrel with shoulder stock; one registration per gun is enough). He also had a semi-auto H&K that could take the stocks, and so the gov't charged that *that* gun plus the stocks meant it was an unregistered short-barreled rifle.
Gov't also charged a semi auto M-14 copy was a full auto, but jury acquitted Kwan of that. It did convict him on the short barrel charge. Then the court granted a new trial, finding that it should have given a jury instruction requested by Kwan ... which instruction, I might add, would kill the government's case. So the government finally dropped charges.
Permalink · National Firearms Act · Comments (6)
Results of Georgia bill allowing carry in restaurants that serve drinks
Over at the Atlanta Examiner, Ed Stone has thoughts on the first anniversary of HB 89, which allowed carrying in restaurants and on mass transit. He cites media predictions of mass drunken violence, "escalated gunfight with dozens of innocent Georgians paying the price," etc. ...
The one problem being that, as might be expected, so such thing has ever happened.