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February 2010
article on McDonald case
In the LA Times. Memorable quote:
"The 2nd Amendment says, "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Throughout the 19th century, and until quite recently, the high court maintained that this clause was intended to give states the power to control armed militias.
But in recent decades, most Americans have come to believe the 2nd Amendment protects their right to have a gun, regardless of whether they serve in a militia."
Permalink · Chicago gun case · Comments (14)
National Law Journal on reviving privileges or immunities
Article by Timothy Sandefur, here.
Permalink · 14th Amendment · Comments (4)
Judge disbarred
The story gives new meaning to the term Bar Discipline. Word is that he is now considering a run for the State Senate.
Hat tip to reader Saeid Shafizadeh...
Permalink · humor · Comments (1)
USA Today on Otis McDonald
Story here. His background is turning into a solid human interest story, which in my experience is rare. "High profile cases" usually have symbolic plaintiffs rather than ones with an interesting life story directly linked to their theme.
Permalink · Chicago gun case · Comments (0)
Bob Cottrol on Cruikshank
Prof. Bob Cottrol comments on that ruling in today's SCOTUSBlog.
Hat tip to reader Alice Beard...
Permalink · 14th Amendment · Comments (5)
Bill Clinton agrees with NRA
At least, concerning its role in the 1994 electoral turnover:
"Clinton added that the National Rifle Association also played a bigger role than it's credited in turning over Congress during the 1994 Republican revolution. "They were mad about this whole weapons ban and the Brady Bill, and they probably took 15 of our House members out. That was their number, they said between 15 and 20, and I'd say, at least on the low side, they were right," he said."
Permalink · Politics · Comments (6)
New Park rule takes effect tomorrow
Here is one of many, many stories about allowing carry of firearms in national parks and wildlife refuges, where State law allows it,
KY lawsuit over CCW permittee's firearm in parked vehicle
Complaint, in pdf, here. The plaintiff is an anesthesia tech, working at the university hospital; they fired him over his having a handgun in a car, parked on campus, about a mile away. I haven't checked the KY law, but it certainly sounds like he has a good case. I note they not only fired him, in violation of the statute, but opposed his application for unemployment benefits. Reminds me of what an attorney who does medical malpractice here told me. About 1/3 of his cases arise when a hospital hands off its bill to a collection agency. The family suspected their member had died due to a screw up, but were willing to consider it water under the bridge -- until Acme Collections starts pestering them for $5,000 to pay for the treatment that killed the person.
Hat tip to reader Charles Riggs....
Permalink · CCW licensing · Comments (5)
Gun Owners Against Illegal Mayors
Bloomberg should be quaking in his boots ... or loafers. Gun Owners Against Illegal Mayors lists the rap sheets of his gang, and calls for their prosecution under the Racketeer Influences and Corrupt Organizations statutes. Do it for the children!
Permalink · antigun groups · Comments (4)
Brady releases its annual report card
One story here:
"The Brady Campaign's report uses five categories to score states: how well they curb firearm trafficking, whether they perform background checks, how effectively they keep guns from children, whether they ban military-style weapons and how they regulate guns in public places.
Massachusetts scored 54 out of 100 points. No. 1-ranked California scored 79. Utah scored zero."
And their 2008 [lastest available] homicide rates, per 100,000 population:
California 5.8 Massachusetts 2.5 Utah 1.5
A good correlation: the worse your Brady grade, the lower your homicide rate. Here's another story:
"Gun control laws in northern New England are being given low marks in the Brady Campaign to Prevent Gun Violence's annual survey of state gun laws. The survey gave Maine a score of 11 out of 100 for its laws, while New Hampshire was given a 9 and Vermont was given an 8. The Brady Campaign says laws in Maine, New Hampshire and Vermont allow the sale of guns without background checks, put children at risk and help feed the illegal gun market."
Homicide rates: Maine 2.35 New Hampshire 0.9 Vermont 2.74
NH is the second-lowest in the entire country. All the other States Brady complains of are in a quick count of the 15 States with the lowest homicide rates. If we look just at firearm homicides, you'd think Brady would have a chance, but it does lousy there, too. In California, it's #1 pick, firearm homicides are 69% of the total. In New Hampshire, they're 16%, Maine 35%, Vermont 47%, Utah 46%.
Oh, as Don Surber points out, the only State with a lower homicide rate than New Hampshire is North Dakota, whose three murders gave it a rate of 0.47 and a firearm homcide rate of zero -- and Brady Campaign gave it an F and 4 points out of 100,
Permalink · antigun groups · Comments (12)
Washington State Supreme Court on incorporation
State v. Sieyes (pdf), handed down today. Defendant was charged with possession of a handgun by a minor. The court, in an extremely thoughtful ruling (citing Joyce Malcolm, Eugene Volokh, William van Alstyne and others) rules that the 14th Amendment due process clause incorporates the right to arms and makes it binding on the States, then remands for a determination as to whether the law passes muster (which was barely briefed). The dissent argues there is no need for remand, because strict scrutiny applies and the law fails that test. The dissent has interesting references to teenager possessing arms, and serving in the militiary, throughout American history.
Permalink · 14th Amendment · Comments (4)
NRA Board elections
Just got my ballot issue, and went searching for candidates' webpages for more info. Here's what I found so far:
Carol Bambery of Michigan, webpage here. Shooter, hunter, pro-gun attorney, carries an incredible load of NRA board work (serves on six committees, about twice the usual workload), filed pro-gun briefs in DC v. Heller and in the Chicago case. Supported by Texas CHL Forum.
Steve Shreiner, webpage here. President, Firearms Coalition of Colorado, which rec'd NRA's award for best volunteer organization of the year; combat veteran (Airborne Rangers) with Silver Star and Bronze Star with v for valor, serves as member of NRA's Grassroots Committee.
Tom King, webpage here. President of and political liaison for NY State Rifle and Pistol Association, endorsed by it and by the Fifty Caliber Institute.
Ken Hanson [added], webpage here. Pro-gun attorney, does much legal work pro-bono for progun causes, winner of NRA Defender of Justice award, former Legislative Director of Buckeye Firearms Association.
Permalink · NRA · Comments (5)
Summary of issues in McDonald v. Chicago
There's a good summary here, by Cornell U's Legal Information Institute.
Permalink · Chicago gun case · Comments (1)
A good day in Virginia
Virginia Civil Defense League is reporting that today:
The following bills passed the Senate:
SB 334, Senator Hanger, restaurant ban repeal - 22 to 18
SB 408, Senator Vogel, non-CHP holder can have their loaded handgun in a locked compartment of container in a private vehicle or boat - 24 to 16
SB 3, Senator Smith, clarifies that a CHP can be renewed through the mail - 29 to 11
SB 533, Senator McDougle, clarifies that a new CHP applicant that is denied has the right to a hearing - 32 to 8
And the following bills passed the House of Delegates:
HB 49, Delegate Lingamfelter, repeals One Handgun a Month - 61 to 37
HB 854, Delegate Morefield, castle doctrine - 75 to 24
HB 52, Delegate Cole, makes it a $25 civil fine for not carrying a CHP while carrying concealed - 99 to 0
HB 26, Delegate Wright, limits what information must be supplied by a CHP applicant - 99 to 0
HB 1217, Delegate Lewis, lets school boards offer firearms safety classes - 99 to 0
HB 8, Delegate Carrico, clarifies that a CHP can be renewed through the mail - 75 to 24
HB 69, Delegate Carrico, Virginia Firearms Freedom, protection on guns made and sold in Virginia) - 70 to 29
HB 79, Delegate Ware, prohibits circuit courts from releasing CHP application information to the public - 87 to 10
HB 108, Delegate Cole, requires guns that localities get in a buy-up must be auctioned if possible - 75 to 24
HB 109, Delegate Cole, repeals law that allows localities to tax and register handguns - 80 to 18
HB 171, Delegate Pogge, prevents an employer and others from banning firearms in locked vehicles in a parking lot - 72 to 27
HB 236, Delegate Janis, allows for discharge close to a subdivision if done safely - 79 to 19
HB 490, Delegate Lingamfelter, authorizes the State Police to investigate a lifetime CHP - 78 to 20
HB 870, Delegate Cline, removes the authorization for a locality to fingerprint first time CHP applicants - 83 to 15
HB 871, Delegate Cline, clarifies that a new CHP applicant that is denied has the right to an ore tenus hearing - 92 to 7
HB 885, Delegate Athey, non-CHP holder can have their loaded handgun in an unlocked compartment of container in a private vehicle or boat - 74 to 25
HB 1070, Delegate Athey, CHP holder can carry in an emergency shelter - 74 to 24
HB 1191, Delegate Griffith, permits a judge to allow a circuit court clerk to issue CHPs if there are no problems with the applicant - 86 to 12
HB 1379, Delegate Sickles, requires that child-care facilities in Northern Virginia follow state law in regard to storage of firearms - 86 to 12
Sounds like a pretty good day!
Permalink · State legislation · Comments (6)
Debate on guns on campus
It's in the comment section to this post on the N.Y. Times blog.
Hat tip to reader Nick L. ...
Payback is rough
Inland Fish and Game Conservation Association is likely to reopen its shooting range soon.
Reading between the lines of the announcement: a land developer bought land close to the range, then sued to shut it down, claiming that birdshot were landing on his parcel. A suspected real motive was that if he could keep the range shut down, he wouldn't have to install sound abatement measures while building a subdivision on his parcel. But, strangely, local authorities refused him permission to build the project.
Bureaucratic memories
The comment to the previous post reminds me of an experience when I worked in Interior's legal shop. Understand, to a bureaucrat "we've always done it this way" is sacred, safe; "we've never done it that way" means it's dangerous and unwise.
Early one morning my boss and I are attending the staff meeting of the Deputy Director, US Fish and Wildlife Service, when an Ass't Director brings up a strange issue. There was a statute that only applied to importing fish "taken" outside the US, with no definition of "taken."
A fellow wanted to construct an oil-tanker sized ship as a giant floating aquarium. He'd steam up to somewhere in Canada where salmon are taken, load the ship with them, and steam to Los Angeles. Along the way the salmon would be fed and fattened up. At Los Angeles they'd be killed and sold.
Question: within the meaning of the statute, were the fish "taken" when they were captured in Canada and put into the ship, or were they "taken" when removed from the ship and killed? Everyone in the meeting spoke of how this was a strange situation, nobody else had ever come up with the idea, etc.,etc..
The Deputy Director asked my boss for his legal opinion. I forget which way he went, but he ended with "because we've always treated that way."
There was silence in the room.
The Deputy Director said -- everyone here just agreed nobody has ever come up with an idea like this. If this is the first time the idea has ever come up, how can we "always have treated it that way"?
My boss thought for a few seconds (it was very early in the morning) and allowed he might have been misinformed.
Permalink · Personal · Comments (2)
Ooops...
ATF issues permits for importation of 13,000 barrel shrouds, then decides they are silencers. From the description, it sounds as if the shrouds are designed to look like suppressors, but the barrel really extends to the front end of it ... in which event I can't see how they could suppress the sound any.
UPDATE: at AR15.com, they ask some interesting questions. For example, if it is indeed a silencer, why is ATF asking them to ship it back to the manufacturer for modification? Wouldn't that involve sending an NFA device in interstate commerce without a permit? And transferring an unregistered NFA device?
Permalink · BATFE · Comments (6)
Prof. Aynes' recent 14th Amendment writings
Prof. Aynes of U of Akron law school has two interesting recent articles. One, in Cardozo Law Review de novo (online version) deals with self-defense and the 14th Amendment. I liked the story of the abolitionist Senator, at a time when things were getting violent even on the floor, who made sure he was seen putting two pistols in his desk on the Senate floor. He called another Senator a liar, and when the fellow sent a friend to demand a retraction (the usual preliminary to a challenge to a duel), refused and said worse of him. He just let it be known that if anyone challenged him, he would choose rifles as the weapon, and that he was a very good shot with one. Nobody challenged him, or gave him any trouble after that.
The other, Article IV and Campbell v. Morris: Wrong Judge, Wrong Court, Wrong Holding and Wrong Conclusion", discusses a 1797 Maryland decision on Article IV's "privileges and immunities" clause. It's of importance since Fairman and Berger used it to argue against 14th Amendment "privileges or immunities" incorporation. Prof. Aynes points out some errors in their scholarship... they thought it was a ruling by Maryland's highest court, when in fact it was a ruling by a trial court (subsequently overturned, BTW), and they attributed it to the wrong judge (there were two Judge Chases in Maryland at the time) and they got the wrong holding, which they misinterpreted. Little things like that.
UPDATE: it's rather hard to classify the anti-incorporation authors, just because times have changed. The last time the issue arose, in the late 1940s, they'd have been classified as liberal. They, like Frankfurter, believed in government power, majoritarianism, and judicial restraint, in being extremely reluctant to strike down laws as unconstitutional. By the 1960s, at least as to favored rights, those were conservative positions. In the New Deal years, Justice Frankfurter was seen as quite liberal; by the end of his term in the 1960s he'd have been seen as quite conservative, although his positions had not changed (he dissented from a number of Warren Court rulings, and was responsible for inserting "with all deliberate speed" in Brown I's school desegregation command).
Today those attributes would be split up. Liberals would accept them so long as the issue was economic, and social conservatives would accept them so long as the issue was non-economic, and libertarian conservatives would not much like them in any setting.
Permalink · 14th Amendment · Comments (3)
Seattle ban struck down
Seattle's ban on possessing firearms on city property has been struck down, as violating pre-emption.
Permalink · State legislation · Comments (1)
Campaigning in the grand style
In North Carolina, it's time for full auto fundraising.
"By adding $25 to D'Annunzio's campaign kitty, supporters got the opportunity to fire an Uzi or an MP-5 submachine gun.
"I was so good the first time," said 56-year-old Victoria Schott of Charlotte, "I'm going to do it again.""
Permalink · Politics · Comments (1)
Yes, US/ATF is suing for damage to reputation
Story here. When I heard this claim, I thought it improbable that they could find an Ass't US Attorney sufficiently nuts to sue, or counterclaim, for reputational damage to the US or an agency over a critical book, let alone one written by a whistleblowing employee.
I guess I was too generous...
Permalink · BATFE · Comments (1)
Hunting for a whistleblower
David Codrea catches Justice Department trying to track down a BATFE whistleblower.
Permalink · BATFE · Comments (1)
Utah passes exemption from Federal firearm laws
Story here. The bills of this type that I have seen provide that a gun made within the State and transferred to a State resident are exempt from Federal control.
The big difficulty, as I see it, is the Raich decision on medicinal marihuana, holding that growing and using marihuana in-State (and I think persons were forbidden to sell it) came within the Congressional power over interstate commerce. Absent a way around that, State enactments would be trumped by the Supremacy Clause. I haven't had time to carefully read Raich, so I don't know if there is a way around it. On the other hand, there may be considerations here which extend beyond legal doctrine -- the fact that the people of certain States are beginning to act on their beliefs regarding a proper view of federalism.
Hat tip to reader Bret Gallo....
Permalink · State legislation · Comments (8)
Al Gore effect on a continental scale
In the wake of DC's record-breaking winter storm, followed by a blizzard, the Senate Committee on Environment and Public Works cancelled planned hearings on "Global Warming Impacts, Including Public Health, in the United States."
Lively month coming up in Supreme Court
Leading up to the argument in Chicago, set for March 2, we have:
Carr v. US, argued on February 24. Carr was a convicted sex offender who moved to another State before the Federal statute requiring registration after an interstate move was enacted. He was later arrested for not having registered after enactment of the law. Question: is this an ex post facto law, since it increases the punishment for the crime, after the commission of the crime, or is it not, since he committed the Federal offense via conduct occurring after enactment of the Federal law, by not heeding its requirement to register?
The positions staked out parallel the issues raised when the firearm possession ban for domestic violence misdemeanors is applied to such convictions as occurred before the change in law, and I suspect the ruling here will determine the status of those cases.
Second, there is US v. O'Brien, to be argued February 23. At issue is the 30 year mandatory sentence for use of a fully automatic firearm in a crime. Issue: is the use of a full auto an element of the crime, which must be proven true beyond a reasonable doubt, or just a sentencing factor, which need only be proven true by a preponderence of the evidence?
Bank robber turned Supreme Court draftsman
An interesting life story. While serving time for bank robbery, he teaches himself to become a jailhouse lawyer.... and finds he is unbelievably good at it, soon generating an impressive record with the Supreme Court. He's now editing for Cockle Press, the country's biggest printer for US Supreme Court briefs.
Hat tip to six gun Sarah....
Gun limits in wake of snow storm
In the wake of the huge snow storm, the town of King, N.C., banned sale of alcohol, firearms, and ammo, and carrying of firearms . The alcohol ban was lifted in time for the Super Bowl. So far as I can see, no other jurisdiction (including DC's Maryland suburbs, Maryland not having very pro-gun statutes), did anything of the type.
UPDATE, Dave Workman, in the Seattle Gun Rights Examiner, points out it's actually mandatory under a State statute. Transporting a weapon off the owner's land, in an area declared under emergency, is a misdemeanor.
Permalink · State legislation · Comments (8)
Annoyance while hunting
A perfectly clean shot, and this guy nearly ruined it by crouching on the other side of the deer. Finally he moved to the front of it and gave me a safe shot.
He was quite obnoxious after he regained consciousness, even though I took out my canteen and offered to help clean the mess off his face.
Permalink · humor · Comments (4)
Amusing recollection
I just had a recollection-- you've got to understand that after each day of trial, the clerk prepares, and the judge edits, a "Minute Entry." It's not a transcript, just a series of notes about motions made and rulings given.
Some months ago, at the courthouse, a prosecutor told me "I never knew Judge ____ had a sense of humor, but now I know he does." I asked how he knew.
"I was trying a case in front of him and, during a recess, went to the men's room. As I was going in, I saw a fellow coming out, and noticed a $5 bill on the floor behind him. I pointed that out, he said thanks and picked it up ... and then I saw he had a juror's badge on. He was one of my jurors.
I went in and told the judge I'd had contact with a juror, and he and the defense attorney agreed there was no problem.
A fews later I get the minute entry. It read 'Mr. ____ admits to the Court that he proferred $5 to a juror in the men's room.'
So some day I may be up for an appointment to the bench, and get asked just what was going on."
Permalink · humor · Comments (4)
Firearms possession bans in Delaware housing authority apartments
The Caesar Rodney Institute blog reports that the Delaware State Sportsmen's Association is prepared to sue against the divisions of the State housing authority that impose lease conditions forbidding firearms possession.
Permalink · State legislation · Comments (4)
Just in time for tax season...
IRS is in the market for sixty combat shotguns.
"Remington parkerized shotguns, with fourteen inch barrel, modified choke, Wilson Combat Ghost Ring rear sight and XS4 Contour Bead front sight, Knoxx Reduced Recoil Adjustable Stock, and Speedfeed ribbed black forend, are designated as the only shotguns authorized for IRS duty ..."
Hat tips to readers Bill Taggert, Mike Finch, and David McCleary...
NY Times on Arizona proposals
Story here. I find the story a bit unusual ... let's see, last session the legislature allowed CCW permittees to carry in establishments that serve liquor, so long as they don't drink, and legalized defensive display of a weapon. This session the proposal is to end the license requirement (in a "shall issue" State) for carrying concealed.
What's unusual is that the story has a modest slant against ... I'd have expected the NY TImes to be incoherently ranting.
Hat tip to reader Nick Lidakis...
Permalink · media · Comments (3)
ATF agent sues agency, and it sues him
Some interesting developments over at Clean Up ATF. An agent had infiltrated the Hell's Angels and Aryan Brotherhood, they managed to find out where he lived, and he and his family got credible violent threats. The agency agreed to put him in the LEOs' version of witness protection and kept screwing up. When he pointed that out, his superior retaliated by withdrawing what little security he did have, and his house promptly was burned to then ground. He sues for breach of contract, ATF moves to dismiss, and loses the motion.
Then, apparently, ATF gets a US Attorney to sue him for having published a book that allegedly damaged its reputation. (I guess the expiration of the Sedition Act limited the remedy).
At the bottom of the page is a link to the court's order denying the motion to dismiss. Skim thru to p. 25, where the court lists the allegations of the complaint. Pretty spectacular.
Permalink · BATFE · Comments (9)
Gun rights doing well ... in India
Story here, in the Wash Post (which is pretty extraordinary in itself).
"Verma said he plans to join the recently formed National Association for Gun Rights India to lobby against new gun controls that the government has proposed, blaming the proliferation of both licensed and illegal weapons for a rise in crime.
Although India's 1959 Arms Act gives citizens the legal right to own and carry guns, it is not a right enshrined in the country's constitution. Getting a license is a cumbersome process, and guns cannot be bought over the counter -- requirements that gun owners describe as hangovers from the colonial past, when the British rulers disarmed their Indian subjects to head off rebellion."
I can attest that the National Rifle Assn of India is all over that country's press, usually with several articles a day. It's a result of the last Olympics, where an Indian shooter picked up the country's only gold, making himself, the sport, and the main organization all very popular.
hat tip to reader John Higi....