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January 2011
Rahm Emanuel back on the ballot
The fix is in! Illinois Supremes rule that you can, indeed, live for years in DC yet remain a Chicago resident, long as you left stuff behind.
How to respond to a mugger
Give him your wallet
Recognize that he needs help
Take him to dinner
Explain that it's good to be nice
"I figure, you know, if you treat people right, you can only hope that they treat you right. It's as simple as it gets in this complicated world."
Permalink · media · Comments (13)
Continuing a myth
From an NPR interview:
"As a matter of history, we didn't really see anything like the individual point of view emerge until the 20th century," he says.... The modern debate about individual rights pertaining to guns, he says, began in the aftermath of Congress' enactment of the Gun Control Act of 1968, which attempted to control crime in the aftermath of the assassinations of John F. Kennedy, Martin Luther King Jr. and Robert Kennedy."
I've tracked the history pretty extensively, and am working on an article on the subject right now. Essentially, the individual rights understanding dominated everywhere until the 20th century. You see a few glimmers of a collective rights view in the early 20th century, but it really doesn't become serious until the 1940s, as federal appeals courts grappled with the ambiguities of US v. Miller, and sought to uphold the National Firearms Act. It becomes the dominant federal (but not state) view only after 1968, as appeals courts tried to uphold various features of the Gun Control Act. Heller was of course its downfall. So the collective rights view really is widespread only from 1940 or 1968 until 2007, and then only in the federal courts and a handful of state ones. For the rest of the history of the Republic, the individual rights view held sway.
A fast gun
Now, this is one VERY fast pistolero.
Permalink · shooting · Comments (5)
Bloomberg on the State of the Union
Letter here. I suspect the other side is experiencing what we have experienced under past Administrations -- forgotten, because "what are you going to do, vote for the other side the next time around?" You'll get a small favor now and then, if it's not unpopular to give it, but when it comes to anything major, "I know thee not, old man."
Somewhere in my files I have a copy of an internal memo written in the early days of the Jimmy Carter administration, where a staffer writes to her superiors that someone is going to have to tell Handgun Control Inc. [since renamed the Brady Campaign] that it cannot expect the administration to endorse registration, permits, or anything significant, and that message is going to have to come from someone above her pay grade.
Accidental gun deaths vs. accidental medical deaths
PoliFacts Florida checks out the NRA statement that more people die from medical accidents than do from firearm accidents and rates it mostly true. Their conclusion is that the statement made is entirely true, although the data is imperfect, and the comparison only includes accidents.
Rahm Emanuel gets the boot
Story here. An Illinois appellate court rules he cannot run for mayor of Chicago because of a minor problem -- there is a one-year residency requirement and he only moved back to Chicago in October. (That didn't stop the trial court from ruling that while he was in DC he was actually in Chicago).
Permalink · Politics · Comments (4)
Thoughts multiple rifle sales reporting
David Codrea has some thoughts.
In court you sometimes suspect this
Permalink · humor · Comments (2)
No atty fees to McDonald, either
The District Court also denied attorney fees in the McDonald case. Text is in extended remarks below. This ruling is, I'm sure, simply indefensible. They fought all the way to the U.S. Supremes, won there, Chicago (with no choices left) changed its ordinance ... and the court still rules McDonald was not the "prevailing party." I trust this is going to appealed, although it may be assigned to the same Seventh Circuit panel (which definitely did not like the McDonald result and thus may, like the District Court, let it show).
Continue reading "No atty fees to McDonald, either"
ATF to rule on "sporting purpose" shotguns
Announced at the SHOT Show. Betting is that they plan to declare that the Saiga type shotguns have no sporting purpose and thus cannot be imported. Snowflakes in Hell notes notes this has bigger implications. All but the .410 shoguns are over .50 caliber, and a firearm over that bore which does not have a sporting purpose is legally a "destructive device" subject to NFA registration.
RIP Laura McCabe
Laura McCabe died of cancer last night. She was the widow of Mike McCabe, NRA's second General Counsel, who represented the group from 1982 until sometime around 1990.
Rep. Renee Ellmers reacts to shootings
Her reaction: open carry. [Update: she may mean CCW, but whatever it is, it is carry]
"She said she doesn't want so much security that she can no longer interact with constituents. "I love giving out hugs. I love getting hugs," she said.
Harnett County Sheriff Larry Rollins said his deputies are ready to provide security at any event if a politician asks for it – or if they hear of a potential threat against a public official.
Rollins said Ellmers has a constitutional right to carry a gun, and he said he thinks it's good for her to be armed at times.
"Sometimes, it may not make any difference, but it has a potential to make a difference, I think, always," he said.
Democratic 11th District Congressman Heath Shuler also has said that he plans to carry a gun while in public. Republican 9th District Congresswoman Sue Myrick told The Charlotte Observer that she's a good shot and likely would carry a gun when she felt the need to do so."
Scalia vs. Thomas on 14th Amendment substantive due process
Josh Blackman comments on on the continuing standoff.
Permalink · 14th Amendment · Comments (0)
Atty fees denied in NRA v. Oak Park
The District Court has denied an award of attorney fees in NRA v. Oak Park & Chicago. Text is in extended remarks below. The grounds are that after the Supreme Court ruled in McDonald v. Chicago, Oak Park revoked its ban and Chicago replaced its with a new ordinance. When the Supreme Court sent the case back to the 7th Circuit, the Circuit ordered the trial court to dismiss the case as moot. The District Court rules that NRA did not "prevail." Don't have time to look up all the case law, but I really doubt the ruling would have been the same if plaintiff had been a more favored party and the suit a more favored cause of action.
Continue reading "Atty fees denied in NRA v. Oak Park"
Permalink · Chicago gun case · Comments (0)
Open carry OK'd in VA State parks
Story here.
Ted Cruz runs for Senate
Press release here. As Texas Solicitor General, Cruz organized the filing of the state AGs and SGs amicus brief supporting Heller.
Acting in character
Videos of the shooting reportedly show Judge Roll pushed a Giffords' staffer to the ground, perhaps saving his life, before he was hit.
The guns of Martin Luther King
Prof. Adam Winkler has a post on the subject. It's interesting, and so are the comments.
Win in suit against California ammunition law
Chuck Michel has announced that the NRA / Calif. Rifle & Pistol Assn suit challenging the California handgun ammunition restrictions (requiring registration and banning mail order sales) has won on a void for vagueness challenge. Among other vague provisions was its application to cartridges intended "primarily" for use in handguns.
Permalink · State legislation · Comments (2)
Events
I've been offline for a few days due to work and personal matters. Update:
Thursday I attended Judge Roll's visitation and rosary. There were quite a few (as in hundreds) attendees, and tightest security I have ever seen, down to deputy riflemen on the church's roof.
Friday I tried to attend his funeral mass. Tried, because there were several thousand attendees, and the couple that I know that got in showed up three hours early. I parked a good quarter mile off -- not only the church parking lot was filled, but every street for that distance. Walking, I met groups returning, because they had been turned back; there simply was no more room, and this may be the largest RC church in southern Arizona. My sister and brother in law found there was a shuttle bus running from a location about a mile away but they, too, were turned back. Newspapers said that several thousand showed up for the funeral mass. Yes, he was that respected here. He really was a judge who went by the law, exclusively. I couldn't tell you anything about his politics, because I knew him mostly from the courtroom, and his politics and personal preferences had absolutely nothing, absolutely nothing, to do with his legal rulings.
My friends who got in said the funeral sermon was given by Msgr. John Lyons. He'd been Judge Roll's classmate in elementary and high school, and had been my moot court partner in law school (he practiced law before becoming a priest).
Saturday I attended the ABC town hall meeting that was shown on Sunday. I briefly saw the guy who was chucked out and arrested. I heard him shout behind me, and turned to see two deputies taking him out. He was busted for disorderly conduct and threats. A tea party spokesman had said that maybe we ought to delay debating gun control until at least after the funerals, and this fellow, who had been making appearances calling for gun control) snapped his picture and said "you're dead!" (I didn't see or hear that part of it). Rather ironic, I thought. A woman near me said the guy must be pretty weird. Before the meeting he had passed his business card to her and others (a bit tacky, I would say) and babbled about playing tennis, so she thought he was a bit of a mental case. News reports had said he was shot in the knee by the killer, but he was on both feet and not limping when the deputies escorted him out, and is said to have driven himself to the hospital, so I suspect it was a nick.
The guest included the retired colonel who was the first to tackle the shooter, and the lady who grabbed the magazine away from him. The colonel said that when he and another guy got the killer down on the ground, the killer exclaimed that they were hurting him, the colonel suggested to the other guy that they could let up, and the other guy responded no way!
Local legal conversation is that running with the Federal charges first is a mistake, and probably an FBI publicity grab. (1) The insanity defense is the likely defense, and while the Feds have a modified M'Naughton "not guilty by reason of insanity" defense, Arizona has "guilty but insane," which means the defendant goes to a mental institution, and when release from that goes to prison to finish his sentence. (2) Arizona has a "natural life" sentence, meaning a real life sentence, he leaves the prison when he dies. I don't know if the Feds so. (3) Proving murder one in Arizona involves proving just that. The Federal crime is murder of a government official, which requires proof in addition that the victim was on official duty. Gabby Giffords was clearly on duty, but it'd only be attempted murder. Judge Roll would be murder, but it may be hard to prove he was on official duty if he hadn't already started speaking to the Representative within hearing of witnesses, and had brought up court business. Odds are that he was indeed there to speak about the needs of the court, or to thank her for past concern shown, but proving that beyond a reasonable doubt may be a problem.
So the Federal charges may be harder to prove than the State ones would be, the Federal insanity defense is much more effective, and the State sentencing options are better. It'd be better to go with the State charges first, or to go with them exclusively.
Alan Korwin on CNN tonight
He'll be on Parker Spitzer, 6 PM Mountain Time, 8 PM Eastern.
ATF allowing guns to go into Mexico
Video here. There have been local rumors that ATF allowed considerable quantities of guns to go south of the border, saying it was necessary to their investigations, and without informing Mexican authorities of the arrangements. That'd make it rather unlikely to have aided investigations, though it might help to inflate the numbers traced to US sales...
Permalink · BATFE · Comments (7)
Thoughts on the Tucson shooting
From all accounts, the shooter appears to be schizophrenic, probably paranoid schiz, and was giving significant signs of being dangerous long before the shooting. Fellow students and teachers were fearful enough to where the college suspended him unless he could provide a psychiatric evaluation showing he wasn't dangerous, and they sent campus police to make sure he got the message. But nobody seems to have given a thought to getting the guy committed for treatment -- perhaps because doing so would have been so burdensome that running the risk of his going violent was the easier course.
Our present system for commitment is the result of the movement to deinstitutionalize the mentally ill, which hit its peak in the early 1970s. I recall an issue of the Arizona Law Review back then on the subject. Back then, there were few limits on committing a person beyond the fact that they had some mental disorder, and there was little in the way of medication. Of course being locked up in a sort of barracks with dozens of other screaming lunatics didn't do much to improve mental health. The end result was that a lot of people who were disordered but harmless wound up being warehoused for the rest of their lives. Of course, books and movies such as One Flew Over the Cuckoo's Nest, in which the protagonist (not insane) winds up under a tyrannical nurse, is tortured by electroshock treatments, and turned into a lobotomized zombie, popularized the concerns.
Can't help but wonder if the pendulum swung too far the other way, The present Arizona standard is that the person must be a danger to self or others, or utterly incapable of caring for themselves. A county attorney once told me of a mental case who would walk down the street "keying" cars. Someday she was going to get beaten up over it, but it was impossible to show sufficient danger to self or others, and arresting her was useless because she was solidly within the criminal law's standard for not guilty by reason of insanity.
I was just looking over the Arizona statutory system... very complex, designed to make it very difficult. A person must apply to have someone committed, and it must be based on their own observations, not hearsay; then a peace officer can be requested to take them in. The officer cannot act on his own unless he does so on personal observations and it is an emergency. Then there are procedures to get a court hearing; if an application isn't filed within 24 hours, the person must be released. He may not be treated during this time without his consent. He must be informed of the right to an court-appointed attorney. If the court allows him to be held for evaluation, it cannot exceed 72 hours.
At the subsequent hearing, doctors must testify based on their own observations (again, no hearsay, altho experts are generally allowed to use such), two doctors must attest to dangerousness. What they must address is spelled out: "Such testimony shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. If the patient is gravely disabled, the physicians shall testify concerning the need for guardianship or conservatorship, or both, and whether or not the need is for immediate appointment. Other persons who have participated in the evaluation of the patient or, if further treatment was requested by a mental health treatment agency, persons of that agency who are directly involved in the care of the patient shall testify at the request of the court or of the patient's attorney. "
The court's decisionmaking is likewise dictated. Among many other requirements:
"B. The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available.
C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this section if the court:
1. Determines that all of the following apply:
(a) The patient does not require continuous inpatient hospitalization.
(b) The patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program.
(c) The patient will follow a prescribed outpatient treatment plan.
(d) The patient will not likely become dangerous or suffer more serious physical harm or serious illness or further deterioration if the patient follows a prescribed outpatient treatment plan."
My gut feeling is that all this procedure, and heavy stacking of the deck against commitment, may be outmoded in an era when physicians are not reflexively inclined toward commitment, when the standard is dangerousness, and when real treatment is often possible. Clayton Cramer blogs a lot on this issue. Here's one of his recent posts; he's even working on a book on the subject.
Gun carrier was among those who brought down the Tucson killer
You won't see this on most news programs, for some reason.
Rest in peace, Judge Roll
Story here. I've been in front of him a goodly number of times, and he was a good judge, probably the fairest one I've ever been before. He did believe that there was "law" that existed outside of his own policy choices, and that he must search for and be governed by it. I believe he was the first judge to strike down the Brady Act mandate that State officials run the system (without compensation and whether they wanted to or not).
Changes at NRA HQ
Jim Baker is returning to become head of ILA Federal Affairs; Chuck Cunningham, in that post, will move to State and Local Affairs; Randy Kozuch, there now, will move to Endowments.
Magnus v. US -- DC Ct of Appeals
PDF here. The DC court rules that a person can challenge a decade old guilty plea to violating DC's handgun ban, provided he can make the right showings of fact. Also interesting in that it lists other rulings of that court giving effect to the Heller ruling.
Permalink · Heller aftermath · Comments (7)
Webpage I'm building
Right here. It's devoted to the legislative history of the Firearm Owners Protection Act of 1986, which extensively rewrote the Gun Control Act. A big problem is that researching the history of FOPA is almost impossible. Almost all of it is pre-digital. The standard first resource, US Code, Congressional, and Admin News, is hopeless -- it tells you there was no Senate committee report, and gives you, without explanation, a House committee report that doesn't describe what was enacted.
My aim is to present a reasonably complete legislative history, both in key word searchable text and in pdf scans (in case they are needed as exhibits in court). I've got the committee reports, a background report, and the House floor debates, plus some on S.2414, which modified the interstate travel section of the legislation. I've still got to scan and edit the Senate floor debates.
Permalink · Gun Control Act of 68 · Comments (6)
Kids, don't try this at home
It's only safe for 82 yr old veterans.
Hat tip to Sixgun Sarah....
Permalink · Self defense · Comments (1)
Challenge to citizenship requirement for CCW permit
Constant Conservative has a post on a South Dakota case challenging the limitation of CCW permits to US citizens, and exclusion of lawful aliens.
Media ignores ATF internal scandals
David Codrea asks why the mass media have been ignoring a series of management scandals within ATF. It's a good question.
For many years, the answer would have been that to the MSM gun laws were a pet project and thus ATF a pet agency. Today, it may be a more generic problem. I don't see much reporting in depth on ... well, on anything. If the reporter couldn't understand the issue in five minutes (or quote a press release in that time) it gets ignored. It's true with local news, too ... at least when sports aren't at issue.
Permalink · BATFE · Comments (4)
Interesting question re: gun free zones
There was some argument regarding whether a private entity which forbade firearms in an area, or in parked cars, might assume some liability to a person who became a victim of crime because they could not defend themselves. The usual counter was the concept that a person generally has no legal duty to protect someone else from crime -- phrased otherwise, to prevent someone else from committing a criminal act.
Reader CarlS points out an interesting passage in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The suit was brought on behalf of a boy who suffered serious brain damage when county social workers ignored evidence that his father was beating him, and the Supremes held that this did not involve deprivation of liberty without due process of law.
In the course of distinguishing cases that allowed prisoners to sue for lack of safety and medical care, the majority noted:
"The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means."
So the State's liability in the prisoner context does not arise from its knowledge that the prisoner is in danger, but from the fact that it has limited his freedom to protect himself...
Permalink · Self defense · Comments (4)
On winning converts
A while back, there was a lot of blogging regarding a William Holda, president of Kilgore College, who had said, quite incorrectly, that CCW permittees shot each other at the Luby's massacre shooting.
So blogger Popgun decides to take him and Mrs. Holda out shooting and show them what it's like.
Heller aftermath
Supporters of the DC handgun ban argued that it served a crucial role in dealing with crime, and predicted that its loss would lead to all manner of dire effects.
"DC Homicides At Lowest Level Since 1963".
So much for antigunners' predictive abilities....