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February 2016
Can we run this guy for president?
Sheriff David Clarke, of Milwaukee County.
"Only eight Justices? So what?
That's the title of a rather interesting article by Josh Blackman and Ilya Shapiro.
BATF report on firearms manufacture
Right here. Very interesting trends. In 1986, a total of three million firearms were produced. In 2013, it was well over ten million. Pistols (here used to mean semiauto handguns) totaled over four million in 2013 -- so the number of handguns made in that year was greater than total firearms production in 1986. Total gun production doubled, repeat doubled, between 2010 and 2013.
Looking at Exhibit 1a, by the early 2000s, production was about what it'd been in the late 1980s, with about the same distribution except that the proportion of revolvers had declined. The current surge in production began in about 2005-2006, and became spectacular after 2010. The only product that hasn't expanded much is shotguns. Everything else, rifles, handguns, and "misc. arms," have had their production greatly increase. Even "miscellaneous firearms" went from 4,000 to 495,000 over 1986-2013.
(2013 is the latest year reported -- reports are delayed since manufacturers want exact production figures treated as trade secrets and kept quiet for a time).
J. Curtis Earl Museum
Decades ago, I knew the late J. Curtis Earl, gun collector extraordinaire -- particularly of NFA arms. I just found a reference to collection, now on display in Boise, Idaho.
When I last visited him, circa 1980, he was still in Phoenix, and showed me some of his pieces. He had a Johnson Light Machine Gun, a Villar-Perosa, which some consider the first submachine gun, and a Soviet sub gun, with a strange and rather garish finish, some parts chrome and some nickel. He'd bought that from a police department, and finally determined that when khrushchev visited the U.S., one of his bodyguards had left it behind in that city (I seem to recall it was Las Vegas). He had two early antitank guns (one is misidentified at the link above as a howitzer) in his back yard. His storage area was a concrete building in his yard, with a bank vault door (salvaged from a bank that was being demolished). Inside were more Thompsons and MG-42s than I could count. He was selling the latter to police departments around the country... he said in those days PDs wanted ANYTHING they could get that was full auto (these were the early days of SWAT), and if all they could get were surplus belt-feds in 7.92mm, that was what they would take.
NRA Board elections
Got my voting issue of the Rifleman. I always recommend a simple practice: I never vote for all 25 (out of 31) that you are allowed to. Usually, all are qualified, but there are a handful that are really essential to operations and activism, and some who are good for that, some carry a heavy workload, some just sit on one committee. Since most people vote for 25 out of 31, the result is that the vote count spreads are very thin, and a hundred or so votes can make the difference for those near the cut-off. The danger in voting for 25 is that one of your "good but not essential" candidates might beat out one of your "essential" candidates.
My personal judgement is that the following are essential:
Jim Porter: lawyer, past president, chairs Legal Affairs Committee, sits on four other committees.
Carol Bambery, pro-gun attorney, chairs Bylaws Committee and the National Firearms Law Seminar, vice-chair of two committees, member of two more. (click here for more information).
Sandy Froman, pro-gun attorney, past President, sits on three committees.
Tom King, State activist, chairs Small-Bore Rifle, sits on four more committees.
Lance Olson, State activist, chairs Gun Collectors, sits on three more.
Bob Sanders, pro-gun attorney, sits on Legal Affairs and on the Civil Rights Defense Fund.
Steve Shreiner, busy Colorado activist, sits on GrassRoots, holds Bronze Star with V for valor and Silver Star, both from Vietnam.
I'm probably biased -- four out of seven are pro-gun attorneys, and I have more opportunity to see them in action. On the other hand, I know they all show up for each meeting unless there is a compelling reason otherwise.
On the Grover Norquist recall, I'm voting no. The committee recommended that vote, after his accuser failed to show up for the hearing, and the committee found that he was stuck in California on the date when his accuser claimed he was in his office in DC.
Fight at Georgetown Law over Scalia's passing
The latest exchange is detailed at Above the Law. A short summary: Georgetown issued a generic statement to the effect that it mourned Scalia's passing (he was a Georgetown undergrad). Two law profs sent out a response, which stopped only a little short of "we're glad he's dead." It called him "a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic." Profs Randy Barnett and Nicolas Rosenkrantz responded, and hit hard. "[W]ere Georgetown Law a genuinely diverse intellectual institution, I doubt any faculty member could have been so callous on this occasion."
A solid hit on The Atlantic
Her ironic answer: "I guess the Stoner weapons system only reaches its full automated death-spraying-made-easy capability when wielded by untrained civilians. The Army should look into this."
Grover Norquist
Todd Rathner, an NRA Board member from Arizona, explains why he opposes the attempt to recall Grover Norquist from the Board.
Randy Barnett on Justice Scalia's legacy
Right here.
Interesting thoughts on Justice Scalia
Thoughts on a recess appointment
I see the idea being debated of Obama making a recess appointment to replace Justice Scalia. (The last recess appointment to the Court was that of Justice Brennan, in 1956... motivated, interestingly enough, by an upcoming presidential race).
Such a move would have to be made in haste (the Senate is in recess for just over another week, and is unlikely to allow another recess after that).
A factor to consider: it's been a long time since a Justice died in office. For decades, Justices have left the high bench by retiring, which can be timed for the end of the Term, leaving everything relatively orderly. The outgoing Justice wraps up this term, the new Justice takes office for the next Term. That's not the case here, and the situation hasn't happened very often in recent history. From what I can see, the last Justice to die in office was CJ Rehnquist, who died in 2005 -- while the Court was in recess between two Terms. Going farther back, Justice Robert Jackson died in office in 1954. He died on October 9, meaning the Term had barely begun. Then there was Justice Frank Murphy, who died in July 1949 -- again, between Terms. So a mid-Term death is an event for which there has been no precedent for something over 65 years.
A term runs from early October to late June, nine months. The Court is almost exactly halfway through that. That means a lot of cases that have been argued but not decided. Its custom in case of a replacement is to re-argue cases unless the replacement agrees to cast no vote in the case. Just handling the cases already argued is going to be a major problem. The Court's calendar schedules arguments relatively early in a Term, leaving the Court time to decide them late in the Term. There have already been 26 argument days (and four more scheduled for this month), with 14 left for the rest of the Term. In terms of arguments, the Court is 2/3 to 3/4 through its task. In terms of rulings, the decisions so far rendered have been the "slam dunks," which the Court likes to get out of the way early. Of those 18 rulings, six were per curium (essentially consensus, not signed by any judge) and another five were unanimous. In short, the Court's calendar this Term will likely be in chaos for some time.
How long would such a recess appointment endure? The Framers seem to have regarded "recess" with an eye to the gap between two Congresses, not with an eye to shorter breaks, and the clause says that the recess "Commissions which shall expire at the End of their next Session." If a shorter recess qualifies for appointments, and the courts say it does, does the "end of their [the Senate's] next session" relate to the next time they take a recess, or to the end of this Senate late this year, or to the end of the next Senate, 2+ years from now? Hard to say, given how the courts have played around with the language (the clause says it allows appointments for "Vacancies that may happen during the Recess of the Senate," but the courts have said that covers vacancies that happened while the Senate was in session and remain open when it recesses).
Some further issues, and ones that might make a recess appointment unattractive:
1. Congress may be in a recess too brief to activate the appointments clause. In NRLB v. Canning, the Supreme Court faced that issue, and stated "We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause." If my counting is correct, this is a 9 or 10 day recess (Feb. 12-22) and thus on the borderline.
2. Congress may have a way around. The same case noted that "the 2-year life of each elected ConĀgress typically consists of two formal 1-year sessions.... The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will "adjourn sine die," i.e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin)." Note "typically." NLRB also noted that "The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate's determination about what constitutes a session should merit great respect." Congress might thus be able to declare the first session at an end, begin a second session, declare that at an end, and begin a third session. The recess appointment (and any others made to date) would terminate at the end of the second session.
Justice Scalia has died
He was found in his room at a Texas resort ranch. Age 79.
UPDATE: Demos want to rush nomination of replacement; Repubs say no. I hope the Senate leadership has guts enough to stick to that.
We're in the very best of hands....
Minor problems at the Department of Homeland Security:
"Inventory reports, obtained by the news site Complete Colorado and shared with FoxNews.com, show that over 1,300 badges, 165 firearms and 589 cell phones were lost or stolen over the span of 31 months between 2012 and 2015."
Great Fourth Circuit decision in Kolbe case
Opinion, in pdf, here. It's a challenge to Maryland gun laws mostly directed at "assault weapons."
The court finds that AWs are in common use: "we note that in 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States." It rejects the argument that magazines are not "arms." It also rejects claims that "dangerous and unusual weapons" describe AWs, asking where the line could be drawn.
It then holds that strict scrutiny (hurrah!) applies, since the ban applies in the home and the law substantially burdens that right, and remands to the lower court so that it can assess the law in that light.
The majority does reject the Equal Protection challenge to the law's exempting retired law enforcement officers; Judges Traxler and Agee dissent from this, feeling that it does pose an EP problem.
Parts 5 and 6 were authored by Judge Traxler, and hold that the ban on "copies" of the listed firearms was not void for vagueness.
Judge King dissents, and it can be summed up in one quote: "Let's be real: The assault weapons banned by Maryland's FSA are exceptionally lethal weapons of war. In fact, the most popular of the prohibited semiautomatic rifles, the AR-15, functions almost identically to the military's fully automatic M16."
(The majority's response to his dissent is worth quoting: "Our distinguished dissenting colleague asserts that we have imprudently and unnecessarily broken with our sister courts of appeal and infers that we will bear some responsibility for future mass shootings. In our view, inferences of this nature have no place in judicial opinions and we will not respond beyond noting this."
UPDATE: a dissent in a panel opinion can have several functions. (1) In the event that there's a move to reconsider en banc, or a petition for cert, the fact that it was a divided opinion with strong dissent is something that other judges might weigh in considering whether to grant en banc or to take cert. (2) If another court is considering relying on the decision, it puts the judges of that court on notice that there was another side to the issue.
George Soros, Hilliary, and Priorities USA
News from Washington: Billionaire George Soros dropped $6 million on Priorities USA, a pro-Clinton super PAC.
Not too surprisingly, Priorities USA is 100% antigun. Here's one example. Here's another.