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March 2010
FOPA protections for travelers
Over at his conspiracy, Eugene Volokh discusses the recent Third Circuit ruling in Revell v. Port Authority of New York. I once heard Mr. Revell describe his experience, and it was pretty appalling.
He's flying from Salt Lake City to Allentown, PA, with a firearm properly stowed in his checked-in baggage. The flight connects in Newark. But his flight's arrival is delayed, and he missed the connection. He booked on the next flight, then the airline announced it would bus the passengers to Allentown. But it didn't get his baggage on the bus, and the bus left while he was looking for the baggage. He finally caught a courtesy bus to a local hotel, and returned to the airport the next morning; upon checking in, he was questioned and arrested. He wound up spending three days in jail before charges were dropped, and then sued under §1983.
He invoked the protections of 18 USC §926A, added by the Firearm Owners' Protection Act of 1986 -- I helped draft that section, many years ago. 926A generally protects a person who is taking a gun from a State where its possession is allowed, to a State where its possession is allowed, provided the firearm inaccessible during the transport. The Third Circuit holds that Revell's stay in the hotel, where the firearm was accessible to him, takes him outside the protections of the statute.
Permalink · State legislation · Comments (9)
Case with implications for DV misdemeanor pleas
Padilla v. Kentucky, handed down this morning.
Defendant was a lawful permanent resident, and pleaded guilty to transporting a large load of marihuana. His attorney advised him not to worry about deportation, and he pled guilty. When he discovered that deportation was in fact inevitable, he challenged the plea on ineffective assistance of counsel bases, and a majority of the Court agrees. The opinion points out that various immigration reforms have changed the deportation consequence from something of a concern (the sentencing judge could recommend against it, and that was virtually binding) to an inevitability. The majority thus find that deportation is a key part of the penalty, and a person pleading out must be informed of it. (Alito and Roberts concur, on the basis that the attorney affirmatively misled the defendant; Scalia and Thomas dissent, arguing that counsel need not advise a defendant regarding collateral consequences of a plea).
Thoughts: (1) This would likely extend to misdemeanor DV pleas, where the defendant was not informed of the plea's effect on firearm possession, now that Heller establishes that as a constitutional right; (2) it may also have a bearing on pre-Lautenburg pleas. Defendants there could not be informed of the consequences, because there were none at the time of the plea, but this suggests that application to pre-enactment pleas is indeed an ex post facto increase in the penalty.
Permalink · prohibitted persons · Comments (5)
Ten Rules for Dealing with Police
An article in the Washington Post. Here in Tucson, I'd have some others:
1. Before retrieving your registration from the glove compartment, tell the officer that you have a loaded .45 in there and offer to let him hold it. This is only polite.
2. Remove the magazine and clear the action. Again, this is simple politeness.
3. Do not waive your rights. If he offers to buy it, refuse unless he makes a really good offer. Around here, a shout of "I have a gun!" is apt to be met with "How much do you want for it?"
4. Accept his criticisms -- such as you should clean it, there is too much dust in the bore -- without arguing. If he wants advice on its reliability, give it unless he has given Miranda warnings.
5. Be thankful you live in Pima County and not in another place where an officer might get perturbed upon being informed you have a gun.
More women getting guns?
There are some reports that this is the case.
Hat tip to Sixgun Sarah...
Heller's potential progeny
It's an article in the Wall Street Journal Blog.
Permalink · Heller aftermath · Comments (2)
Government blocks access to Clean Up ATF
Dept of Justice computers that try to access Clean Up ATF.org now find it is blocked, and get a response designed to be intimidating:
"Please be advised Internet usage is monitored and logged.
This site has been categorized as Government/Legal.
Your IP address is ____________________
Access to this web site has been filtered per the policy set forth by the Department of Justice.
If you feel that this site has been improperly categorized please contact your IT Help Desk"
Permalink · BATFE · Comments (7)
Perry Mason gets arrested....
For practicing law without a license.
Permalink · humor · Comments (4)
Heller followup -- district court ruling
Here's the District Court (trial court) opinion. It applies "intermediate scrutiny" (more exacting than rational basis, less exacting than strict scrutiny) and upholds the new DC regulations.
[Of course, standards of review are judicial creations, and thus both arbitrary and malleable. When I went to law school there was no intermediate scrutiny. And in some settings the Supreme Court has indicated two different standards of review are applicable depending upon how far a law goes].
UPDATE: here are posts on the decision, by Josh Blackman and by Eugene Volokh.
Permalink · Heller aftermath · Comments (8)
Delay or impediment to gun permit issuance may violate due process
So says the Second Circuit, as noted by Eugene Volokh.
Amazing how this legal field has turned around in a year or two....
Permalink · State legislation · Comments (5)
First time requirement of purchase
I've received several emails pointing out that, with regard to statements that the current health care bill is the first to require citizens to purchase something, the 1792 Militia Act required every male of military age to have a musket and ammunition, which was roughly equivalent. So indeed it is not unprecedented, altho most of its backers would not want to invoke requirement that every male of military age prove they had at least one gun!
UPDATE: one of the comments states that Prof. Saul Cornell wrote that the Militia Act was abandoned, on a date two years before it was passed. I didn't recall reading this anywhere, contacted him, and he doesn't recall having written it, either, and thinks it likely that someone else is being confused with him. Could the commenter take a second look and see what it was?
Permalink · militia · Comments (11)
ATF suit against agent; his answer
It's linked, over at CleanUp ATF.org. Pretty appalling. (1) The way they screwed this guy over, while letting his bosses take trips at taxpayer expense to hobnob with starts; (2) how they cover up for favored supervisors caught in major wrongdoing and (3) how they and Hollywood pal around.
This the case where the agent sued, and they sued him for slandering the US government! I've never heard even of the idea that the government can file a civil suit for defamation; the only thing that comes close is the prosecutions under the Sedition Act ... which was allowed to expire in 1804 or thereabouts.
Permalink · BATFE · Comments (5)
Kansas House votes to allow CCW on higher ed campuses
Story here. The proposal, which would allow CCW permittees to carry on university and college campuses, has passed the House and is going to the state Senate.
Permalink · State legislation · Comments (0)
MSNBC and right to carry
It's far more balanced than you would have seen ten years ago. Rather funny, tho, in that the lead tale is of an armed robber who was shot by one of his intended victims, and it ends with "friends and relatives were left to mourn, barred by the same Castle Doctrine from filing a civil lawsuit."
h/t to sixgun sarah...
Congress and the Constitution
Rep. John Conyers explains that the healthcare bill is constitutional under the Constitution's "good and welfare clause", adding "I’m chairman of the Judiciary committee, as you know."
The inmates really are running the asylum...
Medicinal marihuana and GCA 68
From an email making the rounds:
"Nevada has just started adding the names of those who have a lawfully obtained medical marijuana card to the "do not purchase" list. You are now denied if you try to purchase a firearm in Nevada (from an FFL). They don't come out to your house and take your already purchased guns (not yet anyway) but the do not allow any new purchases. "
The Gun Control Act bans firearm receipt (and possession) by anyone who "is an unlawful user of or addicted to any controlled substance (as defined in §102 of the Controlled Substances Act (21 U.S.C. §802)." The problem is that while the State has legalized it, the Feds have not; Pres. Obama has just given it a manner of dispensation, but the law remains in force.
I've heard it said that medicinal marihuana is a gateway drug; many users go on to full-blown chemotherapy.
Permalink · prohibitted persons · Comments (4)
More on pistol-gripped shotguns
From James Bardwell's always-useful list, comes a 1996 BATF opinion letter. Its conclusion is that a shotgun that starts out with a pistol grip and a rifled barrel, which is then shortened below 18", becomes a "destructive device" since it is a rifled firearm of over 50 caliber.
(I checked, BTW, and even the 28 gauge is over .50 in bore).
UPDATE: Yep, the NFA's history is interesting and at times weird. Why does it impose a $5 tax on "any other weapon," i.e., a concealable gun that is not a "pistol"? Why would Congress in 1934 be worried about gangsters with pistol canes or 19th century palm guns or smoothbore pistols?
It started out as a high tax on full autos and short barreled guns, with a $5 tax on all pistols, so as to have nationwide registration of those, too. To make sure the pistol proviso couldn't be evaded, the drafters made it pistols and any other firearm capable of being concealed.
Congress didn't buy the pistol registration, and removed it. But they neglected to remove the "any other weapon" provision. So today a pistol is not an NFA weapon, but an obscure 19th century palm gun that fires a cartridge not made in a century is NFA material.
Permalink · National Firearms Act · Comments (16)
Indiana gets law allowing firearms in parked cars on company property
Story here.
Permalink · State legislation · Comments (2)
Don Kates on the California gubernatorial race
Don writes:
"I have been asked to comment on the up-coming California
gubernatorial election: Of the Republican candidate, an immensely
wealthy woman named Meg Whitman, I know nothing except that she is the
former Chief Executive Officer of eBay and that she is alleged to be
anti-gun by some people who claim to know and that the allegation is not
surprising to anyone.
SPECIFICS: Whitman has no interest in meeting with gun groups to solicit
their support; Whitman has supported Barbara Boxer; Whitman supports
"environmental" lawsuits that are anti-hunting but makes no attempt to
gain the aid of gun groups on environmental issues.
In contrast, I do know Jerry Brown. We went to law school together
though we were not big buddies. And when I contacted him about
supporting the pro-Second Amendment position in the McDonald case, he
filed an influential pro-Second Amendment brief with the US Supreme
Court. I know that he personally made the decision to do this,
overruling his staff; and he wrote the brief himself. (He is an able
lawyer.) When he was assailed by anti-gun forces, his response was that
the 2d Amendment is a "civil rights issue.""
Permalink · Politics · Comments (29)
medicinal pot grower defends self
Story here.
Sounds like a hazardous occupation: "I don't want to shoot people, but God, this is our eighth home invasion since last May." He ought to get something a bigger than a .22, at that rate!
Hat tip to XD Owner....
Permalink · Self defense · Comments (2)
A good year in Virginia
The Virginia Citizens Defense League is reporting a very good year indeed at the Legislature.
Permalink · State legislation · Comments (0)
Tidying up after self defense
Story and photo here.
Permalink · Self defense · Comments (3)
Interesting questions re: pistol grip shotguns
From CleanupATF.org comes this interesting question. ATF has consistently taken the position that a shotgun that leaves the factory with a pistol grip and no buttstock, and is kept in that condition, is a pistol rather than a shotgun. I suppose this was in accord with their desire to construe statutes in ways that increased regulation: here, an 18-21 year old couldn't buy it if it was a pistol, but would have been able to if they declared it a shotgun.
But a commenter there raises a question ATF will find difficult: if such a shotgun is actually a pistol, can't he saw the barrel below 18" without it becoming an NFA firearm? The NFA dictates a minimum barrel and overall length for a shotgun, but not for a pistol.
Permalink · National Firearms Act · Comments (31)
Utah votes for "John M. Browning Day"
Story here. A demigod deserves at least a day!
Wash. Times on Starbucks debate
Editorial here. Interesting note:
"From sea to shining sea, the climate for guns is changing, and the progress extends beyond Starbucks. Major retailers such as Home Depot, Best Buy and Barnes & Noble apparently also are friendly to people who openly pack heat, according to the Wall Street Journal. The Brady Campaign warns businesses that allowing customers to carry guns will scare away other customers. Yet it seems pretty obvious that the businesses themselves - despite all the pressure they face from trial lawyers and bureaucrats to ban guns - are in a much better position to know what their customers want."
Hat tip to George Mocsary....
An interesting point. We're seeing, simultaneously, (1) an increase in gun sales to record levels, and increases in new gun owners; (2) Collapsing poll figures for public belief that guns are bad and gun restrictions are good; (3) legislatures predictably pulling away from those ideas, as well, and (4) the judiciary (and not just the Supreme Court, either) endorsing gun-related rights. It's hard to say which is cause and which is effect, or whether all are being driven by some manner of collective consciousness.
The economy is truly tanking
The "million dollar Luger" is auctioned for half that figure.
Hat tip to Sixgun Sarah....
Low Brady Campaign ratings = lower violent crime?
Over at Calguns, an interesting chart on the subject.
Permalink · Crime and statistics · Comments (1)
New approach to classroom discipline
The Department of Education is acquiring a lot of short-barreled shotguns. They're for the Office of Inspector General, in case they have to deploy a SWAT team against cheated on a student loan or a contract.
Of course if you or I wanted one, they'd be "assault shotguns".....
Hat tip to reader XD Owner,,,,
Snowflakes in Hell: NRA Board recommendations
Here are Snowflakes in Hell's recommendations in the ongoing vote for NRA Board members.
[Oops. Deleted the double posting!]
Permalink · NRA · Comments (2)
Ohio Supreme Court to hear pre-emption case
Story here. Cleveland adopted a bar on open carry, maintaining that the legislature's pre-emption statute violates its home-rule powers, under the State constitution. The Court of Appeals agreed with that, but the Ohio Supreme Court, after being petitioned by the state's Attorney General, has agreed to take the case.
Permalink · State legislation · Comments (2)
Report from Ohio State University campus
Reader Mark Noble emails his thoughts in relation to yesterday's shooting at OSU:
I’ve been very disappointed in OSU PD’s handling of public safety. The campus is surrounded on 3 sides by some of the most dangerous neighborhoods in Columbus. When I’ve talked to the Columbus Police Community Liaison officer at on-campus safety events they blame the victims for getting assaulted and robbed in the neighborhood. Many of the robberies happen to students walking in pairs or groups (which are no match for one or two armed attackers) and the Police parrot the same advice “walk in groups”. To discourage car and apartment thefts they advise OSU students to carry all of their valuables on their person – this just leads to juicier unarmed targets.
I watched the 11:00a press conference from OSU PD. Important facts from the conference.
OSU “takes safety very seriously”.
OSU PD arrived exactly two minutes and one second after the situation was over.
OSU PD heroically captured the suspect who had shot himself and lay dying.
OSU heroically notified students of the danger a half-hour after the threat was over.
Reporter: Are you satisfied with the way that everything worked? OSU Director of Public safety: I'm extremely satisfied and I'm also very appreciative of not only the way that the staff responded in terms of notifying us - taking cover - but also I'm very pleased with the response of our police and law enforcement personnel and also the EMS personnel who responded fairly quickly.
SOURCE: 6:50 into this video.
Other incidents on campus involve multiple armed robberies on the gun-free campus. One very close to the scene of today’s shooting in the same building with the police station. Several shootings have happened at the University Hospital nearby where state prison inmates are brought for treatment and occasionally try to escape.
Because of fears of “drunken college students” misusing handguns, my mom and brother who work in adjacent buildings to this fatal shooting are prevented by their employer and state law from defending themselves at work. My brother is a concealed handgun licensee. My wife, an OSU student frequents another part of campus where a woman was raped the other day. A few days prior, a student with a golf club disrupted an earlier attack attempt in the same area – yet my wife, an NRA Certified Pistol instructor cannot be trusted to defend her own life because she’s a “college student”.
Article on standards of review in 2A cases
By David Kopel and Clayton Cramer, here.
Hat tip to reader Joe Olson...
Background to Chicago handgun ban
Some background, at The American Thinker.
Permalink · Chicago gun case · Comments (0)
Bonus for registering for National Firearms Law Seminar
The National Firearms Law Seminar is the annual Continuing Legal Education seminar put on in connection with the NRA Convention -- the next one is at Charlotte, on May 14. Here's the program.
This year, registration has a bonus. The first 150 to register will get a credit, equal to their registration fee, toward setting up an NFA Gun Trust, courtesy of gun trust lawyer David M. Goldman. Here's his webpage.
You can register online, or use a pdf linked to that page to register by mail, or call 877-NRF-LAWS. For more info, email [email protected].
Mayor Daley doubles down
While awaiting the result in McDonald, Mayor Daley is lobbying for additional gun laws. ""The aggressiveness of the gun advocates is just one reason it's more important than ever that we work for common-sense gun laws..." He demands "changes to state law that would require background checks for those buying a gun in a private sale, ban assault weapons, require that gun dealers be licensed and limit the number of handgun purchases to one per person per month, plus micro-stamping and making it a felony to sell a gun to a known gang member (the last has major void for vagueness problems).
Permalink · Chicago gun case · Comments (4)
Starbucks and the Supreme Court
Bob Barr has thoughts on both. Personally, I may buy a terribly overpriced cup of coffee, for the first time in my life.
Interesting article on an aspect of the Tiahrt Amendment
I knew that the Amendment bans release of gun trace data to cities seeking to sue firearms dealers, but I didn't know that it also declares any such data admissible in evidence. This article argues that the latter restriction, as applied to State courts, is unconstitutional. I wonder, however, whether the fact that the restriction pertains to data originating in Federal investigations, with an allegation that its release might compromise those investigations, doesn't make this more of a "necessary and proper clause" case than a commerce clause case.
Pictures from the McDonald v. Chicago argument
Here are some that I got that day. Understand, we began waiting at 5 AM. Ahead of me were Sarah Gervase and Frederick Jones, who'd been waiting since 4:15 AM, I think he said. He's Otis McDonald's nephew, and a member of the Supreme Court Bar, and was taking no chances on missing his uncle's Supreme Court case. Here are the pictures:
Some of us waiting in the predawn darkness (on the left is Frederick Jones, Mr. McDonald’s nephew.)
Otis McDonald and Alan Gura after the argument.
Mr and Mrs. McDonald coming down the steps.
Here's the crowd outside after the argument,
and the Second Amendment Foundation’s reception that evening.
Permalink · Chicago gun case · Comments (2)
Transcript of McDonald v. Chicago argument
Available here. I think five votes for incorporation, there might be one (Thomas) who would go for privileges or immunities. (P or I has all the history and logic behind it, and due process has all the case law, and it certainly looks as if the Court favors the case law).
We thought Justice Thomas would ask a question, since toward the end of Chicago's presentation he passed a note to a clerk who departed and returned to give him a copy of the US reports (the official print of Supreme Court decisions). But no question was forthcoming, perhaps because Chicago's time ran out soon thereafter.
UPDATE: Bottom line is that Alan's argument for privileges or immunities incorporation drew serious fire from Scalia, and some from CJ Roberts, and none of the other friendly Justices rallied to assist. OK, read those tea leaves. The Court granted cert. on questions presented which included both P or I and due process incorporation, but there isn't much support for the former (or perhaps the supporters are remaining silent). Whichever it is, this is not a line of attack that at 10 AM on March 2, 2010 is going to give much promise to winning more votes if you persist.
Permalink · Chicago gun case · Comments (10)
McDonald v. Chicago
Just got back from oral argument. Short form: I think we have five votes. MIGHT do better than five, but five seem secure. Roberts, Scalia and Kennedy seemed VERY strongly against Chicago's position, Alito seemed against it, Thomas asked no questions but is thorough pro-2a and 14thA, so it looks like the Heller majority holds. Conversely, Breyer attacked Heller and kept arguing against incorporation. Majority did not like privileges or immunities, but due process seemed solid.
Humor: the room was packed, hundreds of people, every seat taken. After McDonald, the Court remained in place to hear the next case. As I left I heard the chief justice say "Well, counsel, WE're still here." I looked back and saw what he meant -- there were perhaps 20 people staying for the next case, as hundreds left.
Permalink · Chicago gun case · Comments (15)
One debate I cannot understand
A post in the Washington Times. Key theme is conservatives (esp. "judicial activism is my key tenet" such) getting worried.
My take: if there are ever five Justices for it, they can do ANYTHING they want under due process incorporation, since it has no leg or popular history underlying it -- it's more of good result, mind the means, rulings. At least privileges or immunities incorp has a historical background, explanations by Sen, Howard abd Rep. Bingham, as some manner of originalist limitations.
Permalink · 14th Amendment · Comments (1)
US News and World Retort on Chicago case
Story here. An excellent piece, in which the human aspects are all up front, and the complaints toward the back. Hat tip to Sixgun Sarah...
Permalink · Chicago gun case · Comments (1)
McDonald v, Chicago countdown
In Heller, the Supreme Court released the audio of the oral argument a few hours after it was completed, but In the case tomorrow they won't. A transcript of it will be online here, sometime later in the day.
I'll be out of blogging action for some time, since I'll be in the courtroom (and waiting in line from 5 AM onward). I know Sebastian of Snowflakes in Hell and Christie Caywood of the Bitchgirls will be on the courthouse steps.