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August 2014
Armed Self Defense Moments
Ohio: two perps try to abduct a woman walking her dog. She draws her gun, and they reconsider.
Florida: armed robber enters jewelry store, pulls gun on 89 year old WWII vet. The vet grabs perp's gun, draws his own .38, and puts six rounds into perp. (The perp survived: the vet needs a bigger gun and/or hotter loads. He may have been using the old 158 grain round noses).
For reference re: justifiable homicide
In the dispute over how many self-defense cases occur, one data point often cited by those seeking to minimize the number is the FBI Uniform Crime Report's count of justifiable homicides (a legal category that includes self-defense). This is usually in the range of 900 a year, including several hundred by police. While that doesn't count self-defense that doesn't result in the perp's death, it is argued that it is inconsistent with hundreds of thousands or millions of defensive uses annually.
What's not realized is that the FBI count is artificially defined in a way that far undercounts defensive uses. The usual definition of self-defense with a deadly weapon is use of force immediately necessary in light of a reasonable belief that the perp is likely to inflict death or serious bodily injury.
But the FBI UCR Reporting Handbook at pp. 17-18 uses a completely different definition. Reporting officials are instructed, in the case of use of force by a non-LEO, to include under justifiable homicide only killings "The killing of a felon, during the commission of a felony, by a private citizen."
The illustration given (do NOT list as justifiable a situation where a citizen shoots a fellow attacking him, in a crime of passion, with a broken bottle -- the author must have watched too many 1950s movies about street fights) makes it apparent that the assault itself does not count as "commission of a felony."
Permalink · Self defense · Comments (1)
$100 traffic citation removed to US District Court
Washington, DC. Federal employee gets into a minor fender-bender, gets a $100 traffic ticket. Alleging he was on duty at the time, the Dept of Justice appears on his behalf and gets the traffic ticket removed to U.S. District Court. (It later reconsidered).
Egad -- the power of the Feds to "remove" a case to Federal Court arises under Article III ยง2. But that relates to cases "arising under this Constitution, the laws of the United States, and Treaties made," not to local traffic rules. It also covers "controversies to which the United States shall be a party," but the US didn't get the traffic citation. On a policy level, removal is meant to protect a Federal official against getting railroaded in State court for doing his job. A traffic citation in a D.C. court hardly falls into that class.
A friend had a case where a lady sued the Post Office, before it became semi-independent, for failure to deliver a sporting event ticket. It was a minor case filed in small claims court. The Feds removed it to Federal District Court. He told the Ass't US Attorney that he could have settled the case for less public expense than it took to file the motion, and asked why a Federal District Judge (of whom there are only a few here, probably only 2-3 back then) should be tied up hearing a case involving a few hundred dollars. He got nowhere.
"The Heroes of the Right of Self Defense"
It's a blog post by Prof. Nick Johnson of Fordham Law. He discusses Otis McDonald and Shaneen Allen (who faces a mandatory three year jail term for having driven into NJ with a firearm for which she had a PA permit to carry concealed).
"So another rhetorical question: Why have the nominal champions of civil rights ignored Otis McDonald and the self-defense interests of the sober, mature members of the Black community he represented?
The search for answers highlights priorities wildly out of whack. Compare the relative non-acknowledgment of Otis McDonald with the broad consternation over how Black criminals are treated. Michelle Alexander's acclaimed book calling the state of Black incarceration the "new Jim Crow" illustrates this....
A final question, and this one is not rhetorical: Will the people who invoke the power and rhetoric of civil rights to condemn the disparate treatment of heroin and crack dealers, come to the rescue of a law-abiding Black woman whose crime was misunderstanding the multilayered bureaucracies that restrict the federally-guaranteed constitutional right to arms?
Shaneen Allen failed to appreciate that only one piece of the right to keep and bear arms operates in New Jersey. She perhaps concluded that two high-profile Supreme Court opinions affirming the constitutional right to keep and bear arms, plus a Pennsylvania license to carry a concealed firearm, would be enough to secure her right to carry a gun for self-defense, even in New Jersey. She was mistaken, and might be faulted for her slippery grasp of U.S. federalism. But with that as her crime, she is still infinitely more worthy of being rescued than anyone on the recent list of presidential pardons.
So far, there have been no protests or demonstrations seeking justice for Shaneen Allen. Like Otis McDonald, she is ignored by the nominal defenders of civil rights. Let us hope that this is not the end of the story."
"The Second Amendment's Defining Moment"
An interesting article by Frank Miniter. The part I found most amusing:
"[A] mainstream reporter next to me in the press section gasped, "Oh no," when Justice Anthony Kennedy hinted that he believed the Second Amendment to be an individual right while asking the government's attorney a question."
I was there and remember the question. Actually, there were two, but a listener wouldn't have noted unless he'd been following the Second Amendment legal issue for thirty years. The second, yes, a reporter could understand where Kennedy was coming from.
The first question was whether we could grasp the meaning of the Second Amendment by considering its two clauses separately. Yes, a militia is important. And yes, the people have a right to arms. The importance of the militia is independent of the right to arms and the right to arms independent of the militia.
Law review: Resistance of lower courts to Heller & McDonald
"RESISTANCE BY INFERIOR COURTS TO SUPREME COURT'S SECOND AMENDMENT DECISIONS," by Alice Beard, in Tennessee Law Review. It takes an optimistic view of long-term trends. At the moment, judicial recognition of the 2A as an individual right is relatively new and, to many courts, even irregular, something to be approached with caution or outright resistance. In the longer term, it may become accepted as one more American constitutional right.
Cuomo: Remington moving had nothing to do with NY gun law
Rather funny. Remington decides to move its AR-15-making operations to Alabama, and with it 2,000 jobs. Cuomo's reaction:
"We have been talking to Remington about rehabbing and redoing their facility in New York. It is a very important part of New York. It is a big employer in New York. Their plant here is old and we want to work with them on restoring that."
So these rifles are just killing machines, that do not belong in civilian hands, but please manufacture them here, we'll be happy to help?
CalGuns & SAF win against Calif. waiting period
Filed this morning, Silvester v. Harris (Eastern Dist. of Cal) looks like a solid win (after you go through all the pages detailing California's unbelievably complex answer to trying to prevent bad guys from buying guns). It finds the "cooling off" period rational for the 10 day mandatory waiting period to be unfounded, and basing the requirement on "we need the time for all the background checks" makes no sense when applied to (1) a person already permitted to own a firearm or (2) a CCW permit holder or (3) anyone whose background checks are completed in less than 10 days.
Reading between the lines, you can get a grasp of how much work went into this win. You don't base a winning record on "this is wrong, so let's sue and look for an obvious win."
Permalink · Chicago aftermath · Comments (1)
An interesting demographic
Washington state is involved in a battle over Initiative 541, a lengthy antigun measure... and, as David Workman reports, a study of contributions in support of it finds that 84% of contributions came from ten zip codes in urban and suburban Seattle. Here's a map of the Seattle area to give some idea.
Permalink · antigun groups · Comments (7)
Bloomberg leaving office... with a private security force
Self protection, like laws, are for the little people.
LA Times explores becoming a tabloid
Story here.
But won't the parakeets dislike the new format? It'll probably be glossy and not very absorbent.
How many errors can USA Today make in a single article on gun laws?
Story here.
"A review of congressional legislative records, federal lobbying disclosure forms, as well as interviews with former ATF agents, shows how the NRA has repeatedly supported legislation to weaken several of the nation's gun laws and opposed any attempt to boost the ability of the Bureau of the Alcohol, Tobacco, Firearms and Explosives (ATF) to enforce current laws, including:
The Firearms Owners' Protection Act of 1986. This law mandated that the ATF could only inspect firearms dealers once a year. It reduced record-keeping penalties from felonies to misdemeanors, prohibited the ATF from computerizing purchase records for firearms and required the government to prove that a gun dealer was "willful" if they sold a firearm to a prohibited person."
No, FOPA says BATF can randomly inspect once a year. It can inspect additionally anytime a gun is "traced" to a dealer, or if they have evidence of specific misconduct. Certain conduct has to be proven "willful" (made in known violation of the law) to secure a conviction. A dealer who deliberately sells to a prohibited person is hardly in a position to claim he didn't know that this was illegal.
"The Tiahrt amendments. Beginning in 2003, the amendments by then-representative Todd Tiahrt, R-Kan., to the Justice Department's appropriation bill included requirements such as the same-day destruction of FBI background check documents and limits on the sharing of data from traces."
As I recall, the same-day destruction requirement is only for persons who passed the background check. How would that, or sharing trace data with others, impair law enforcement?
"One provision in the law Vizzard cited as particularly vexing to the ATF was that false record keeping for dealers was reduced to a misdemeanor, meaning if an ATF agent audited a gun dealer missing 1,200 guns, the dealer could not be charged with a federal offense.
"You just don't get many U.S. attorneys filing misdemeanors in federal court," he said."
Sure. Just go out and violate a National Park or National Forest Service regulation, and see how hard it is for them to get a U.S. Attorney to file misdemeanor charges.
"ATF records show the agency had 1,622 agents and 826 industry investigators in 1973 compared with 2,574 agents and 833 investigators in 2012.
Meanwhile the number of firearms owned in the United States has only grown."
And the number of licensed dealers has shrunk.
"The agency has not had a permanent director since 2006, the same year the Congress passed a bill to require the head of the ATF to be confirmed by the Senate like their counterparts in the FBI - a bill supported by the NRA.... President Obama recently nominated B. Todd Jones, the ATF's current acting director, to fill the leadership void permanently. While the NRA has yet to weigh in on his nomination, key senators, such as Sen. Chuck Grassley, R-Iowa, have already called for a thorough investigation of his record."
Hello? USA Today? Jones was confirmed by the Senate over a year ago, and recently resigned.
"Ronald Carter, who served as acting director in 2009, said the blame for the ATF's troubles ultimately lies with Congress and said it was time for the bureau to have a permanent head.
"ATF is not exactly loved," Carter said. "They passed the Brady Bill, but they never gave it any teeth. There are no penalties.""
A former acting director never heard that the agency now has a director? And doesn't know that Brady Act violations are felonies, carrying penalties of up to five or ten years? I hope he was misquoted.
Permalink · "no tolerance" BS · Comments (3)
Another MAIG mayor in hot water
This time its Gordon Jenkins, of Monticello, NY, arrested for taking bribes and intimidating the witnesses. We need to bust MAIG for RICO violations! Where are DoJ's Organized Crime Task Forces when you need them?
Permalink · antigun groups · Comments (0)
Huffington Post reporter shows his knowledge of guns
This is hilarious. 'Nuff said.
That's strange. The theater had put up "no guns allowed" signs, after all
Court allows suit against Aurora theater, based on allegations of inadequate security. The court notes that it is only saying the issue is sufficiently disputed to require going to trial, not that either side might necessarily win.
A thought on the indictment of Rick Perry
Patterico pretty well takes it apart, but I'd add a thought.
One of the two charges is violation of a statute which penalizes anyone who "misuses" "government property, services, personnel or any thing of value." Sounds to me like it's void for vagueness. "Misuses" is hardly clear; there are many uses of government property which some would say was "misuse" and others would say was a proper use. An is a veto government "property" or "any other thing of value"? No one can possess or transfer a veto.
There's a couple of Supreme Court cases relating to this, applying the federal mail fraud statutes, which punish any use of the mails as party of a scheme or artifice to defraud. Federal prosecutors sought to apply this is "theft of honest services," i.e., a scheme to deprive the public of honest services by a public official or a corporate executive. In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held the statute simply didn't allow for this. Congress then amended the statute to expressly provide that it did cover theft of honest services. In Skilling v. United
States, 130 S.Ct. 2896 (2010), this was challenged as void for vagueness. A majority of the Court held that the statute could be "saved" by a "narrowing construction," which construed it only to cover bribery and kickbacks, and not conflict of interest or anything else -- thus implicitly accepting that if broadly applied, the statute would indeed be void. At that, two Justices (Scalia and Thomas) said that the statute could not be saved, it was void for vagueness, period.
I'd think that the Texas statute is equally void. "Misuse" is no clearer than "honest," perhaps less so. We probably have a broader consensus on what is "dishonest" than on what is "misuse."
Surprise....
Gun stores packed in St. Louis area.
"He says nearly 100 percent say they are buying them for defensive purposes. "They're buying AR-15s, home defense shotguns, handguns, personal defense handguns something for conceal carry." said King."
Permalink · AW bans ~ · Self defense · Comments (0)
Steve Halbrook on Book TV
He'll be presenting on "Are there lessons for us today from Nazi Gun Control?" on CSPAN-2, Book TV, this Sunday, August 17 at 5 PM EDT.
Howard Nemerov is stepping down
Here's his closing coulumn.
"I began over a decade ago because I was one of those well-meaning liberals who believed the propaganda that we'd be safer in a disarmed society. I believed that gun owners were the problem. I believed that the Brady Campaign were the good guys.
Then, at the behest of a law enforcement client, I set out on my own research journey. I learned that gun control is both racist and sexist in its impact on the real people who have to live in disarmed societies. That offended my liberal sensitivities: I was outraged. So I began to write, first for small local sites, and then for progressively large sites. PJ Media was kind enough to hire me to write features in 2010, and it's been a good run."
Bloomberg's millions lose in primary against pro-gun sheriff
Dave Workman has the story. Use a load of money to buy mass media advertising ... their methods are SO twentieth century!
Permalink · antigun groups · Comments (1)
Brady suit against online seller dismissed
Vesely v. Armslist, LLC (7th Cir. Aug. 12, 2014), as discussed by Prof. Volokh. A person was killed by a stalker who bought a handgun, from a private individual, illegally since they were not residents of the same state, via the online site Armlist. Brady's legal theory was that Armslist facilitates private sales without background checks, and facilitates illegal interstate sales.
The Seventh Circuit upholds dismissal, without getting into the Federal statutory issues. A person generally has no legal duty to protect others, absent a special relationship with them (landlord to tenant, etc.). Armlist did not aid an illegal sale; it simply allowed someone to advertise, and was entitled to assume he meant to sell in compliance with the law.
CT: John McKinney defeated in primary
Just in, an email from CT Carry announcing the defeat of John McKinney in the governor's primary. They describe him as an architect of the 2013 gun restrictions (I'm not up on CT politics and so cannot say).
Here's more on that issue.
One more reason
Why I'd never join the Pompous Association of Empty Suits.
Open letter from Jay Dobyns
Retired BATF agent. It's a oft-repeated story. A corrupt LE agency will still have some honest officers who really want to shut down bad guys for the good of all. Here is how it deals with them. Now, if only Congress gave a hoot....
Prosecutors must have priorities
And we now know those of New Jersey District Attorney Jim McClain. NJ has a diversion program for first offenders, which enables them to have their charges dismissed if they stay out of trouble for a time.
McClain earlier allowed diversion in the case of Ray Rice, who was accused of having beaten his wife unconscious before dragging her out of an elevator. But he denied it in the case of Shaneen Allen, a 27 year old mother, who mistakenly thought that New Jersey recognized her Pennsylvania license to carry, and now faces a 3.5 year mandatory minimum sentence. Rice was, however, a sports star, and we all know they don't have to follow the law.
Permalink · arms law victims · Comments (3)
Mowing the astroturf
Bloomberg group decides to annoy pro-gun candidates at the Iowa State Fair, offers "volunteers" free admission, parking, and food. Pro-groups suggest their members call it to RSVP and get free admission, parking, and food.
Astroturf financed by millionaires is SO twentieth century!
Permalink · antigun groups · Comments (2)
911 gives advice....
Telling a woman whose house is being burglarized to "put the gun down."
I like her response: I'll put the gun down when I see the police."
Interesting article
"When a Psychiatrist Shoots to Kill". It's by a psychiatrist.
Clayton Cramer
Clayton, the pro-gun historian whose research among other things initiated the downfall of Michael Bellesiles, has had a stroke. It's described as minor, weakness on one side of the body, but will require a month of rehab. You can contact Rhonda Cramer at the link. (Update: my email just bounced).
Missouri amends its guarantee of the right to arms
Yesterday it passed by a popular vote of 61%-39%. Pretty extensive changes. The right as guaranteed extends to ammunition and accessories (no magazine bans). Any restrictions are reviewed under strict scrutiny. The State must defend these rights and may not decline to do so (which will put the Attorney General in an interesting position if any future legislature enacts a gun restriction.
Language that said the guarantee will not affect the ability of the legislature to restrict the carrying of concealed arms is replaced by language saying it will not restrict the ability of the legislature to restrict convicted felons or those found mentally infirm by a court.
Permalink · State legislation · Comments (2)
"Terrorist watch list"
There have been proposals by antigunners to ban firearms receipt by those on the "terrorist watch list," which make this article quite relevant. Based on a "leak," it points out that:
(1) Between 700,000 and 1.5 million people are on the list;
(2) The standard for listing is "reasonable suspicion";
(3) More than 40% on the list, some 280,000, are not even suspected of links to any known terrorist organization;
(4) 900 times a day, a person is added to the list or information on him is supplemented.
I must wonder how useful any "watch list" can be that has 700,000 people on it. Obviously that number cannot be "watched." The list just takes on a life of its own; it is maintained because it is supposed to be maintained.
Permalink · prohibitted persons · Comments (4)
RIP Jim Brady
He may have been on the other side, but by all accounts was a nice guy. I met him briefly in the Supreme Court elevator, coming back from the argument in Sheriffs Pritz & Mack v. U.S., and with some effort he managed a smiling "hello."
I was in D.C. on the day when Hinkley shot him and President Reagan, and heard all the sirens going off, back 33 years ago.
UPDATE: I'm too much of a historian to relish myth, and some of the descriptions coming out are pure myth. Understand, Brady was not just confined to a wheelchair; when I saw him he was in one of those crosses between a wheelchair and a gurney, and he could manage to utter one word. A description of him at a later rally said that he managed with effort to say "fight ... fiercely." But this editorial says that he "personally called the then-state [CT] attorney general [Blumenthal] to encourage his efforts," with Blumenthal saying they "maintained a working relationship for nearly 20 years as Blumenthal became a Democratic senator from Connecticut." It adds that "Blumenthal said Brady was also active on the state level..."
One thing I find a bit irksome is that the history, dare I say revisionist history, of the Brady Campaign entirely omits the person who made it into a powerful organization: Nelson "Pete" Shields, who started in when it was a miniscule group called the National Council to Control Handguns, and turned it into a much larger group known at Handgun Control, Inc., recruited the Bradys, and ultimately turned it over to them. And within a year or two he became at most a footnote in its history. I wouldn't be surprised if the organization is smaller, and certainly it's less powerful, than when Shields finished building it up.
I doubt that Shields and Harlon Carter ever met, but they were counterparts, individuals who formed the opposing organizations, largely from the ground up (NRA had been around since 1871, but in the mid-70s was considering abandoning politics entirely). NRA has a bronze bust of Harlon in its HQ, and recognizes his leadership; Brady has made its real founder almost a non-person.
Prof. Nick Johnson on the 14th Amendment & the right to arms
Right here.
"So what do militia-fixated critics of the right to arms have to say about all this? Well, not much. Because if you aim to neuter the right to arms with claims that the amendment is only about militias, you really do have to ignore the Civil War, Reconstruction, the postwar amendments, and indeed most of the 19th century (including antebellum state court decisions holding that the Second Amendment protects an individual right to arms enforceable against the states).
Ironies abound here. Most cutting is that people who lean heavily on the Fourteenth Amendment to support rights that they like, avoid it like kryptonite when it comes to the constitutional right to arms. Someone quipped that this is constitutional interpretation, buffet-style. Justice Stevens' dissent in McDonald is a prime example of this. It extols privacy and reproductive rights grounded in the Fourteenth Amendment, but disparages the armed self-defense right that will keep you alive to enjoy all the others.
For many years, critics chided the academy, the government, and society at large for rendering Blacks invisible within the American story. That criticism invoked our strongest moral invectives. Recently, both Stevens and Waldman have actually used the word "fraud" to disparage the constitutional right to arms. So where is the outrage when supposed champions of civil rights blithely dismiss the struggles of the first generation of black citizens and the enduring lessons surrounding the Fourteenth Amendment's protection of the individual right to keep and bear arms?"