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November 2009
McDonald v. Chicago oral argument set
In contrast, Heller was argued March 18, 2008, and decided on June 26 -- I think it was the last decision of the Term, but I might be wrong. The really controversial ones come down last, probably because the opinions (and dissents, and answers to dissents) are more difficult to write. This may be easier than Heller, which was the breakthru case.
Permalink · Chicago gun case · Comments (3)
Dave Kopel on McDonald briefs
His commentary on the Congressional brief, on the Institute for Justice brief, of our brief for Academics for the Second Amendment, and the Cato Institute brief.
Permalink · Chicago gun case · Comments (0)
Corrupt Federal attorneys get nailed
Gist: IRS claimed that certain tax shelters were in fact illegal. A number of people had used them. To simplify life, it was agreed that they would divide into groups (I think based on common characteristics of their situations), each group with one chosen person to sue, and each group would be bound by whether their "champion," as it were, won or lost. The suits were litigated, and some won and some lost.
Then an IRS higher-up has the IRS trial attorney and his supervisor ask him to clear a deal. It seems they'd offered special deals to two of the "champions" before trial, conditioned on the promise that they would remain as "champions" and tell nobody else. From there on, these parties had no real incentive to win, and one in fact dropped his attorney and argued for himself (and the IRS attorneys offered essentially to pay the other's legal fees).
Fortunately the IRS higher-up had a sense of ethics and blew the whistle. Hopefully their career won't suffer -- altho it might. The two attorneys had perpetrated a gross fraud on the court and on all parties involved. The IRS proposed a slap on the wrist -- two weeks' suspension without pay -- but attorneys' home States disbarred both of them. Now, the Tax Court has awarded $322,000 in attorneys fees to the taxpayers.
Phillip Dominguez case over
Memo here. He drove to pick up a friend at Los Angeles International Airport; they were going to a shooting range so he had plenty of arms and ammo. A random search found them, and he was charged with eight felonies, and portrayed in press releases as a terrorism suspect. Ultimately he plead to misdemeanor CCW, and the guns were returned.
Glad I live in Arizona. Here, if police found you with what he had, they'd think it was really cool and maybe ask to come along.
Permalink · arms law victims · Comments (4)
Joyce Fdn's Second Amendment Research Center
A comment here noted that Ohio St. University's Second Amendment Research Center (funded by Joyce Foundation, to attack the Second Amendment) appears to have vanished. Looks like Joyce invested over $600,000 in it, but stopped funding after Heller, the Center closed, and Prof. Cornell moved on to a position with Fordham (It's an endowed chair, meaning better pay and prestige). Prof. Joe Olson verified that the Center had vanished, and Prof. Randy Barnett noted it at the Volokh Conspiracy.
Olson thereafter got this email:
"STEVEN CONN
11/25/2009 4:25 PM >>>
Dear Prof. Olsen,
I've just come across your crowing obituary for Saul Cornell's 2nd ammendment center. It did indeed serve its purposes - among which was to expose the intellectually flaccid historical work done by so-called legal historians working in law schools. It is easy to achieve a "consensus" around the 2nd ammendment if the those who form it exist entirely in an intellectual echo chamber. I sure wish I got to publish without any peer review process!
Saul also published a major book (Oxford University Press) whose findings, while they have generated a great deal of nasty invective, have stood up as accurate. We all eagerly await your next publication of any consequence. And you will also note that Saul has left OSU to fill a endowed chair at Fordham. Perhaps someday you too will get an offer which will allow you to leave Hamlin College.
Happy Shooting,
Steve
Steven Conn
Professor and Director, Public History
History Department
Ohio State University"
To which Joe responded, "That's zero for one.
The obit. on VC is by Professor Randy BARNETT, not me. BTW, you misspelled my name too. Perhaps, peer review is required?"
Permalink · antigun groups · Comments (11)
Bloggers take on Brady Campaign brief
Here's the commentary from Snowflakes in Hell, and from Joe Huffman.
Permalink · Chicago gun case · Comments (3)
An almost full roster of amici
Right here. Thirty so far.
I was especially happy to see the Brief of Constitutional Law Professors. Among those signing on are Michael Kent Curtis, who essentially rescued the privileges or immunities clause during the 1980s. And the Calguns Foundation, taking on Charles Fairman and Raoul Berger, the reasons why Curtis had to perform the rescue.
Permalink · Chicago gun case · Comments (7)
More amicus briefs
38 State Attorneys General, stressing a due process approach. National Shooting Sports Foundation's amicus, which is mostly devoted to the 2d rather than the 14th Amendment. 900+ State legislators, arguing for due process incorporation. And here's Maryland Arms Collectors' Association, arguing for due process and Nordyke's approach.
And here's Calguns Foundation, hitting at Charles Fairman and Raoul Berger, who argued against privileges or immunities. Their view was dominant from about 1949 to the 1980s -- as in when I went to law school -- until Michael Kent Curtis came on the scene and bested Berger in a number of law review debates, re-establishing privileges and immunities -- all the more remarkably since Berger was then a very big-time law prof, and Curtis a fellow in private practice doing this in his spare time.
Several more, but not yet in online form (it's lots simpler to link to a document already online than to upload one).
Permalink · Chicago gun case · Comments (0)
Amicus briefs in Chicago case rolling in
Here's the Academics for the Second Amendment amicus. And here's the Congressional amicus, signed by 58 Senators and 251 Congressmen, and filed by Paul Clement. As Solicitor General, in Heller Clement had argued for a lower standard of review; you don't see that here!
Our theme in the A2A brief was that talk of "incorporating" a right is a bit misleading. It implies the question is whether the 1866 Framers and ratifiers meant to apply a 1789 understanding to the States. The real question is the intent and understanding of 1866-68. Americans of this period may have thought they were speaking of the 1789 intent, but actually their understanding of rights was far broader. This is especially so in the case of the right to arms. Two major changes here.
In 1789, many spoke of it in the context of a universal, mandatory militia that was absolutely "necessary to the security of a free state." But between 1816 and 1850, the mandatory militia statutes were repealed, and the Republic did not fall. In 1789, standing armies and select militias were the path to dictatorship; in 1866, millions of Americans had served, select militias were everywhere, and they had saved rather than destroyed the Republic. The 1866 Framers as often as not omitted the militia preface when quoting the Second Amendment, and went straight to the right to arms.
Conversely, conflicts over abolitionism, "Bloody Kansas," and now attempts to disarm Blacks and unionists, caused the right to arms to be seen as a purely individual right -- the right to shoot an intruder at the door, even if the intruder worked for the State. The same Congress that passed the Freedmen's Bureau Act (explicitly referring to the "constitutional right to arms") and the 14th Amendment also enacted laws disbanding most of the southern militias, precisely because they were disarming freedmen.
Permalink · Chicago gun case · Comments (7)
Stars and Stripes letter on bases as gun-free areas
Right here. The author is deployed in Iraq.
VCDL President at Virginia Tech
Here's some video on his presentation. Quite a good argument for allowing CCW on campus.
Hat tip to reader Nick L.....
Permalink · CCW licensing · Comments (1)
McDonald v. Chicago briefs
They're online, here. Scroll down about 3/4 of the page. So far we have the two party briefs, and four amicus ones. Deadline for amici supporting the right side is Monday, so there should be a fair number more.
Permalink · Chicago gun case · Comments (1)
"Smart guns"
"The Unrequited Dream of Smart Guns".
Via Instapundit.
Maybe we should just legalize bribery....
As it is, Congressional leaders have to buy votes by giving things to a legislator's district, which costs us far more than would a simple bribe. If, for example, the leadership needed a vote to pass health care legislation, I really doubt even a greedy senator would ask for $100,000,000.
Permits for toy guns
That's going to become a requirement in New South Wales.
Permalink · non-US · Comments (2)
Will the Chicago case lead to a constitutional reawakening?
That's the question asked in the Wall Street Journal Online.
Permalink · Chicago gun case · Comments (1)
Attempted hijack of Maesrk Alabama
This time, tho, the ship had armed guards who shot back, and the pirates quickly took several KIAs. Howard Nemerov notes, strangely, the NY Times plays down the rifles and the defense and sounds rather, well, pro-pirate.
7th Circuit questions ban on gun ownership by misdemeanor DV defendants
There's quite a discussion at the Volokh Conspiracy, regarding today's decision that calls into question the Lautenberg Amendment. The court concludes that the law should be given intermediate scrutiny (in part because the firearm was possessed for hunting rather than self-defense), vacates the conviction and sends that case back for more fact-finding. The wording certainly indicates that the court is taking the challenge seriously and wants the parties to do so as well. Opinion here.
Hat tip to readers Todd, and to Alice Beard.
Permalink · prohibitted persons · Comments (4)
Cory Maye gets a new trial!
Via Instapundit...
UPDATE: here's the opinion. Maye's attorney got a ruling transferring the case to another county, due to local bias. Then he discovered the second county was no better, and moved to have it returned. Instead the trial court moved the case to a third county. The appellate court noted there was a constitutional right to be tried in the county where the offense allegedly occurred, and so, upon Maye's retracting his request to be transferred elsewhere, it should have been returned to the county where the incident occurred, not sent to a third county.
NRA's Chicago brief
Pdf is here. Between this and Petitioner's brief, I think the ground is covered very well. Petitioner emphasizes incorporation under the privileges or immunities clause (which makes far more sense) and NRA emphasizes incorporation under the due process clause (which is simpler to do).
NRA files, not as an amicus, but as respondent in support of petitioner. In case you wonder what that is -- NRA also filed an appeal (a petition for cert.), but the Supreme Court took the SAF case and not the NRA one, which remains pending. The Clerk ruled that NRA, being a party to the other appeal, was entitled to file as if it were a party (meaning a longer brief, but deadline yesterday). It'd obviously be in support of the Petitioner. But custom is that anyone not a petitioner and not an amicus is a respondent. So they wound up as Respondent in Support of Petitioner).
Permalink · Chicago gun case · Comments (6)
US v. Miller (1939)
I did some research in National Archives, into US v. Miller. If anyone wonders how the case wound up so messy... here are a pair of telegrams from Miller's attorney to the clerk of the Court, announced that he won't file a brief, nor argue. View image
Permalink · US v. Miller · Comments (18)
Opening brief in Chicago case
Pdf is here. Very, very, well-written.
Permalink · Chicago gun case · Comments (0)
NY case on destruction of guns
Pdf here. Plaintiff surrendered his guns to a sheriff, pursuant to a protection order entered in his divorce case. The sheriff destroyed them before the divorce case was over. The Court of Appeals held that he had a property interest in his firearms, the statute authorizing the sheriff to destroy unclaimed firearms after a year only applied to handguns, there was no qualified immunity since a reasonable LEO reading the statute would have known that. It also held that the sheriff's department (rather than just the person who destroyed the firearms) was open to suit since had an office policy allowing such illegal destruction.
Permalink · State legislation · Comments (5)
DC Ct of Apps holds Heller is retroactive
Pdf ruling here. Skim ahead to p. 21, or p. 29 if you have a low threshold of boredom.
Permalink · Parker v. DC · Comments (5)
Report from Fort Hood
I can't authenticate this -- don't know the author's identity -- but the author states he is a soldier who was present at the murders. It comes via a Texas friend:
Sent: Friday, November 06, 2009 10:05 AM
Subject: What happened
Since I don't know when I'll sleep (it's 4 am now) I'll write what happened (the abbreviated version.....the long one is already part of the investigation with more to come).
Don't assume that most of the current media accounts are very accurate. They're not. They'll improve with time. Only those of us who were there really know what went down. But as they collate our statements they'll get it right.
I did my SRP last week (Soldier Readiness Processing) but you're supposed to come back a week later to have them look at the smallpox vaccination site (it's this big itchy growth on your shoulder). I am probably alive because I pulled a --------- and entered the wrong building first (the main SRP building). The Medical SRP building is off to the side. Realizing my mistake I left the main building and walked down the sidewalk to the medical SRP building.
As I'm walking up to it the gunshots start. Slow and methodical. But continuous. Two ambulatory wounded came out. Then two soldiers dragging a third who was covered in blood.. Hearing the shots but not seeing the shooter, along with a couple other soldiers I stood in the street and yelled at everyone who came running that it was clear but to "RUN!" I kept motioning people fast. About 6-10 minutes later (the shooting continuous), two cops ran up, one male, one female. We pointed in the direction of the shots.
They headed that way (the medical SRP building was about 50 meters away). Then a lot more gunfire. A couple minutes later a balding man in ACU's came around the building carrying a pistol and holding it tactically. He started shooting at us and we all dived back to the cars behind us. I don't think he hit the couple other guys who were there. I did see the bullet holes later in the cars. First I went behind a tire and then looked under the body of the car. I've been trained how to respond to gunfire...but with my own weapon.
To have no weapon I don't know how to explain what that felt like. I hadn't run away and stayed because I had thought about the consequences or anything like that. I wasn't thinking anything through. Please understand, there was no intention. I was just staying there because I didn't think about running. It never occurred to me that he might shoot me. Until he started shooting in my direction and I realized I was unarmed.
Then the female cop comes around the corner.. He shoots her. (According to the news accounts she got a round into him. I believe it, I just didn't see it. He didn't go down.) She goes down.. He starts reloading. He's fiddling with his mags. Weirdly, he hasn't dropped the one that was in his weapon. He's holding the fresh one and the old one (you do that on the range when time is not of the essence but in combat you would just let the old mag go).
I see the male cop around the left corner of the building. I'm about 15-20 meters from the shooter.) I yell at the cop, "He's reloading, he's reloading. Shoot him! Shoot him! You have to understand, everything was quiet at this point. The cop appears to hear me and comes around the corner and shoots the shooter. He goes down. The cop kicks his weapon farther away. I sprint up to the downed female cop. Another captain (I think he was with me behind the cars) comes up as well. She's bleeding profusely out of her thigh. We take our belts off and tourniquet her just like we've been trained (I hope we did it right...we didn't have any CLS (combat lifesaver) bags with their awesome tourniquets on us, so we worked with what we had).
Meanwhile, in the most bizarre moment of the day, a photographer was standing over us taking pictures. I suppose I'll be seeing those tomorrow..
I couldn't believe he was one of ours. I didn't want to believe it. Then I saw his name and rank and realized this wasn't just some specialist with mental issues. At this point there was a guy there from CID and I asked him if he knew he was the shooter and had him secured. He said he did.
I then went over the slaughterhouse, the medical SRP building. No human should ever have to see what that looked like. And I won't tell you. Just believe me. Please. There was nothing to be done there. Someone then said there was someone critically wounded around the corner. I ran around (while seeing this floor to ceiling window that someone had jumped through movie-style) and saw a large African-American soldier lying on his back with two or three soldiers attending. I ran up and identified two entrance wounds on the right side of his stomach, one exit wound on the left side and one head wound. He was not bleeding externally from the stomach wounds (though almost certainly internally) but was bleeding from the head wound. A soldier was using a shirt to try and stop the head bleeding.
He was conscious so I began talking to him to keep him so. He was 42, from North Carolina, he was named something Jr., his son was named something III and he had a daughter as well. His children lived with him. He was divorced. I told him the blubber on his stomach saved his life. He smiled. a young soldier in civvies showed up and identified himself as a combat medic. We debated whether to put him on the back of a pickup truck. A doctor (well, an audiologist) showed up and said you can't move him, he has a head wound. We finally sat tight.
I went back to the slaughterhouse. They weren't letting anyone in there. Not even medics. finally, after about 45 minutes had elapsed some cops showed up in tactical vests. someone said the TBI building was unsecured. They headed into there. All of a sudden a couple more shots were fired. People shouted there was a second shooter! A half hour later the SWAT showed up. there was no second shooter. that had been an impetuous cop apparently. But that confused things for a while. Meanwhile, I went back to the shooter. The female cop had been taken away. a medic was pumping plasma into the shooter.
Eventually (an hour and a half to two hours after the shootings) they started landing choppers. They took out the big African-American guy and the shooter. I guess the ambulatory wounded were all at the SRP building. Everyone else in my area was dead.
I suppose the emergency responders were told there were multiple shooters. I heard that was the delay with the choppers (they were all civilian helicopters). they needed a secure LZ. but other than the initial cops who did everything right, I didn't see a lot of them for a while.
I did see many a soldier rush out to help their fellows/sisters. There was one female soldier, I don't know her name or rank but I would recognize her anywhere, who was everywhere helping people. a couple people, mainly civilians, were hysterical, but only a couple. One civilian freaked out when I tried to comfort her when she saw my uniform. I guess she had seen the shooter up close. A lot of soldiers were rushing out to help even when we thought there was another gunman out there..
This Army is not broken no matter what the pundits say. not the Army I saw. And then they kept me for a long time to come. Oh, and perhaps the most surreal thing, at 1500 (the end of the workday on Thursdays) when the bugle sounded we all came to attention and saluted the flag. In the middle of it all. this is what I saw.
It can't have been real. but this is my small corner of what happened.
**************************************
DC "sniper" gets a last injection
Either the last or one of the last shootings was at the Home Depot in Falls Church, about 200-300 yards from the house owned by my ex, Frances, and I.
I remember seeing it on the news and calling in. Fran was apt to be frightened by the least things, and this really had things going; police had shut down Rt. 7 and were routing traffic thru the neighborhood, helicopters buzzing overhead. I remember her shouting to her mother to turn off the lights and not silhouette herself against a window. I pointed out the snipers' MO was shoot and scoot; it was a safe bet he was at least 10 miles away before the first squad car got to the scene.
Veterans' Day video
Right here, at Shooting Illustrated online.
Thoughts on the Ft. Hood shootings
J. Neil Schulman has traced the history of the Dept of Defense regulation that essentially forbids military personnel to carry their own firearms on-base.
Compendium of firearm manuals
Right here.
Hat tip to reader David McCleary....
Another new article
Clayton Cramer, Nick Johnson, and George Mocsary have an article forthcoming in the George Mason Law Review, entitled 'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified." It's an interesting treatment of how perceptions of the right to arms expanded and became more individualistic over 1789-1866, largely as a result of attacks on abolitionists.
Permalink · 14th Amendment · Comments (1)
A good gun beats gold?
Interesting thoughts at Marketwatch.
Hat tip to reader Jack Anderson....
Judge rules in favor of Students for Concealed Carry
A Texas judge has enjoined the Tarrant County College from stopping a SCC protest. The College somehow thought it could prevent them from carrying empty holsters and from handing out fliers anywhere but at a table.
Hat tip to reader Nick L.
Permalink · General con law · Comments (0)
Strange events in a Phoenix courtroom
Caught by the security cam. While a criminal defense attorney argues a motion, a detention officer rifles thru her papers behind her back, takes one, and gives it to another officer. Here's another story.
Hat tip to Tavis Steen and Paul Huebl...
Permalink · General con law · Comments (4)
Ft. Hood: "wishing he too had a gun"
Pfc Marquest Smith, in hiding, "He lay low for several minutes, waiting for the shooter to run out of ammunition and wishing he, too, had a gun."
"Just over 5 feet tall, [officer Kimberly] Munley is an advanced firearms instructor and civilian member of Fort Hood's special reaction team. She had trained on "active shooter" scenarios after the April 2007 mass shooting at Virginia Tech University. She didn't wait for backup.
As Munley approached the squat, rectangular building, a soldier emerged from a door with a gunman in pursuit. The officer fired, and the uniformed shooter wheeled and charged."
At least the military will review its firearms policies,
"Private guns are not allowed on Army bases or at facilities such as the Naval Air Station Fort Worth.
Soldiers generally carry weapons on base only when there is a reason, such as a training exercise or a trip to the firing range. Personal weapons are registered with authorities on the base and stored until they are signed out."
Surprise, Brady Campaign thinks otherwise: ""This latest tragedy, at a heavily fortified Army base, ought to convince more Americans to reject the argument that the solution to gun violence is to arm more people with more guns in more places," said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence." Whatever that's supposed to mean.
FLA: adoption agency questions prospective parents about gun ownership
Story here.
Maryland court refuses to incorporate the 2nd Amendment
News story here. The critical parts of the ruling:
"To begin, we note that there is no Maryland corollary of the federal constitutional right codified in the Second Amendment.*fn4 Furthermore, we have held previously that the Second Amendment is not applicable to the states. See Onderdonk v. Handgun Permit Review Board of Dep't of Public Safety & Correctional Services, 44 Md. App. 132, 135 (1979); see also Scherr v. Handgun Permit Review Bd., 163 Md. App. 417, 443 (2005). This is significant because it means that appellant must hang his musket, so to speak, on Heller's interpretation of the federal constitutional right. Heller filed a lawsuit in U.S. District Court for the District of Columbia seeking to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibited the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibited the use of "functional firearms within the home." Heller, 128 S.Ct. at 2788. The Supreme Court held that the Second Amendment guaranteed the individual right to possess and carry weapons in case of confrontation. Id. at 2797. As a consequence of this interpretation, the Court held that the District's ban on handgun possession in the home violated the Second Amendment, as did its prohibition against rendering any firearm operable for the purpose of immediate self-defense, if it is lawfully within the home. Id. at 2822.
Of more immediate concern for the issue before us, and ultimately fatal to appellant's argument, is the fact that the Heller Court reaffirmed the holding in United States v. Cruikshank, 92 U.S. 542 (1875), that "[t]he [S]econd [A]mendment . . . means no more than that it shall not be infringed by Congress." Id. at 553. While parenthetically noting the weakness of Cruikshank's argument regarding non-incorporation of the right, the Court found that its later decisions in Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894), reaffirmed that the Second Amendment applies only to the federal government. Heller, 128 S.Ct. at 2813. Appellant can cite to only one case subsequent to Heller in which a court has held that the right established in Heller applies against state and local governments. In that decision, Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), reh'g granted, 575 F.3d 890 (9th Cir. 2009), a panel of judges in the Ninth Circuit held that the right to bear arms was a fundamental right warranting substantive due process protection through the Fourteenth Amendment. However, an en banc rehearing was granted for this case in July with the express instruction that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke, 575 F.3d at 890. After rehearing the case on September 24, 2009, the Court issued an order postponing judgment until the Supreme Court's disposition of three similar cases which had certiorari petitions pending.
. . . . . . . .
Even if the Second Amendment did apply, it would not invalidate the statute at issue here. CL § 4-203 provides that a person may not "wear, carry, or transport a handgun, whether concealed or open, on or about the person" or "in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State." CL § 4-203(a)(i), id. at (a)(ii). This blanket prohibition is modified by subsection b of the statute, which provides eight exceptions to the general rule outlined above. One of these exceptions is for possession of a gun by a person on real estate that the person owns or leases or where the person resides. CL § 4-203(b)(6). Thus, even if the right articulated in Heller, namely the right to keep and bear arms in the home for the purpose of immediate self-defense, were to apply to the citizens of Maryland, this statute does not infringe upon that right."
Permalink · 14th Amendment · Comments (10)
Canada may scrap registration of long guns
Permalink · non-US · Comments (0)
Washington Post notices ammo shortage
Story here. Stuck record quote of the day:
"The high sales have alarmed some anti-gun groups. Josh Sugarmann of the Violence Policy Center said he worries about a revival of the anti-government militia movement of the Clinton era.
"This is a pattern that is repeating itself, and it is a pattern that has tremendous risk attached to it," Sugarmann said."
Anyone have a need for a historian or programmer?
Clayton Cramer, who has earned his laurels in both fields, is is looking for work.
FBI watch list
From time to time there are suggestions that those on the terrorist "watch list" should be barred from buying guns. Now it develops that 1,600 names A DAY are being added to that list.
Man fired for looking for a gun part online
An employee of Planco, a subsidiary of Hartford Insurance, was fired after having been seen looking for parts for his skeet gun. His boss admitted she "was scared" of guns, and reported it to their HR department, together with word that he was an NRA member.