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March 2016
Luis V. United States, Thomas concurrence
A decision, handed down yesterday. The Court essentially held that the government could not use wide-ranging forfeiture powers to freeze "untainted" money held by defendant, and thereby prevent the defendant from retaining private counsel. Justice Thomas, concurring, adds
"Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617-618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless."
UPDATE: A concurrence has some, limited, presidential value (except where it provides the fifth vote for a position -- then its value increases). It tells us how at least one justice is thinking, it can be cited by lower courts friendly to his position, or can be cited by the Court itself should the Justice someday get a majority to accept it. Directly it doesn't bind the Court, nor even the Justice who wrote it.
Clayton Cramer is glad they don't have Canada's murder rate where he lives
In Idaho. And for that matter, most of the tier of states contiguous to Canada.
Interesting contrast in California
British tourist robbed, fatally stabbed, in middle of a busy San Francisco street, and locals express shock.
Man steals hot dog and beer from a couple running a 7-11 in Los Angeles, stabs the wife and fatally stabs the husband coming to her defense, locals express shock.
Three armed robbers attack South Los Angeles taco stand, the owner is armed and shoots, one robber DOA, the surviving robbers being sought.
Perhaps there is a lesson to be learned here....
Supreme Court speaks out (a bit) on 2A
Caetano v. Massachusetts. A per curiam (very short opinion not signed by a specific Justice, suggesting the answer was pretty obvious and indisputable). The Massachusetts Supreme Judicial Court had held that stun guns were entirely outside the Second Amendment. The US Supreme Court reverses. (1) The 2A protects arms that were not in common use at the time of the Framing; (2) the exception for limiting carrying of "dangerous and unusual weapons" does not apply, at least when the argument is the arm was "unusual" at the time of the Framing; (3) the fact that the arm in question has little military use does not take it outside the 2A.
Alito and Thomas concur (as I recall, concurrences are very rare in per curiams) and explain the affair at greater length. The defendant obtained the stun gun to protect herself against an abusive ex-boyfriend, and it worked for that purpose. The concurrence suggests that the case shouldn't have been remanded to Massachusetts for further action, the law should have been held unconstitutional, period, with no further consideration. The ending is very nice:
"A State's most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi est of grounds. This Court's grudging per curiam now sends the case back to that same court. And the conse quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self- defense. See Pet. for Cert. 14.
If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."
"Ban this dangerous weapon right now"
It's the favorite tool of serial killers. We probably have to go slowly, though, better half a loaf than none, maybe just take one slice at a time. First, regulate cars as tightly as we do guns, no purchases without a background check, no interstate sales, possession forbidden to felons, persons with mental commitments, illegal aliens, etc.. Then outlaw these particularly dangerous vehicles.
Hat tip to Instapundit.
Searchable database of firearm manuals
Right here. Very handy -- 1,800 manuals already in the database, and two thousand more to be uploaded.
Expansion of right to carry laws
This animated chart tracks the dramatic expansion of right to carry between 1986 and 2014. Impressive!
John Lott demolishes gun study in The Lancet
Debate here. It underscores what criminologist Gary Kleck has said--all the antigun studies are being published in medical journals because the editors, and peer reviewers, don't know anything about criminology. Here they initially looked at several years, then decided to focus on just one because the data on laws was supposedly more comprehensive (??? Ascertaining State laws in 2009 should be no more easy than ascertaining them in 2010 or 2008. I suspect they ran several years, and picked the one that gave the desired result). And, as Lott points out, there are so many variables State-to-State, that it's better to use time-series analysis... here are the years when various States adopted various laws, did their crime rates before and after vary in ways that those of other States did not? In the end, the study's spokesman is reduced to "the study shows we need more studies," hardly a headlines-drawing conclusion.
The moment I heard of it -- universal background checks will reduce homicides by 90% -- I knew either the authors or the headline-writers knew nothing about the issue. Imposition of a totalitarian regime with random searches and a presumption of guilt couldn't reduce homicide rates by 90%.
And to think they managed to get this into The Lancet...
Responses to "protests" shutting down Trump presentations
Instapundit asks "Since MoveOn has been so public about taking credit, will the famously litigious Trump sue them for conspiring to deprive him of his civil rights? Because I would, and the discovery would be fascinating."
42 U.S.C. §1985(3) seems to fite nicely. Since it's rather long, I'll truncate it a little and highlight the parts that seem to fit.
"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws;... or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President .... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
Even under the narrow reading of The Slaughterhouse Cases and Cruikshank, running for federal office is a privilege or immunity of citizenship: the Constitution created Federal offices, and thus the right to run for them. §1985(3) seems to cover the conduct in two ways, and since any conspirator is liable for the result, everyone involved is a potential defendant. And, yes, the plaintiff can recover attorney fees under 42 U.S.C. §1988.
An interesting question
Dave Workman asks, Did Hillary's antigun position hurt her in the Michigan primary?
On calling a second Constitutional Convention
Here's an article I wrote on the subject, eons ago in 1986, when the bicentennial of the Constitution was approaching (a very big deal in Washington DC at the time). I later found it interesting that while the Constitution got a bicentennial committee headed by former Chief Justice Burger, and plenty of hoopla, the bicentennial of the Bill of Rights two years later got almost no play. I suppose in Washington, DC, a company town if ever there was one, the document that created the company/government was occasion for major celebrations, whereas the document which restrained that government was a mere inconvenience, a sop to Americans who had so unwisely distrusted the wonderful government that had been created.
UPDATE: Thanks, I corrected the pdf....
West Virginia overrides veto, allows concealed carry without a permit
Story here. The Senate vote was 23-11, House vote was 64-33. (As I read the State constitution, a veto override requires a simple majority).
Firearm Policy Coalition educates a California legislator
Video here. For some reason, the bill was withdrawn.
SHARE Act passes the House
The Sportsmen's Heritage and Recreational Enhancement Act has passed the House and been passed on to the Senate.
Its most prominent feature (at least as I see it) is one that takes a bit of explaining. Currently, BLM and Forest Service lands are under a statutory default condition of "no" on the question of hunting and recreational shooting: the agencies must act in order to allow it. The bill would reverse that: hunting and rec shooting are allowed unless the agency acts to restrict them.
This actually has a major real-world impact. When an agency acts it must comply with a number of legal restrictions -- NEPA analysis, Endangered Species Act analysis, internal policy requirements, generally publication of a proposed rule in the Federal Register, receipt of comments, and then publication of a final rule. All of those can be challenged in court. When an agency doesn't act, it's subject to none of those. Right now, with the default condition of "no use allowed," every time an agency wants to allow hunting or rec shooting it has to go to some work and experience legal risk. If the statutory default is "use allowed," then it has to go to some work and experience legal risk only when it wants to restrict the activities.