contemporary issues

Gunfire on Capitol Hill, or maybe not

Posted by David Hardy · 26 May 2006 10:54 AM

Story is just breaking. Unclear what happened, and possibly nothing did, but they've sealed off the Rayburn House Office Bldg.

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AP picks up on New Orleans' return of guns

Posted by David Hardy · 20 April 2006 05:05 PM

Here's the story.

BTW, as far as finding a gun was considered evidence in a crime, I had an experience a couple of years ago with an FFL whose inventory was seized by ATF -- for something that turned out not to be a violation of GCA at all.

ATF withheld seven guns because the NCIC check showed they were stolen. We asked for the NCIC reports. It turned out that five of the guns were reported as stolen, mostly at the other end of the country, months AFTER ATF had seized them and popped them in storage. The sixth was an NFA firearm which had been registered to the FFL twenty years before. What'd obviously happened was errors in recording the serial numbers of guns which were stolen. (We let them keep the seventh gun. He'd owned it for years, the report of theft was 20+ years old and the person reporting it was dead. Probably another error, but the gun was cheap and not worth arguing over). Six errors on an inventory of 300 guns would indicate a false positive rate of 2%. Probably the real rate is much higher since most of the inventory was new -- less time for a gun with a closely-related serial number to have been stolen and reported. I suspect the false positives on his inventory of used guns might have been around 10% or more.

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New Orleans gun returns

Posted by David Hardy · 16 April 2006 02:43 PM

After months of delay, and even claims that they didn't have any seized guns, New Orleans has announced the gun returns will begin tommorow.

Continue reading "New Orleans gun returns"

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GoA webpage on New Orleans confiscations

Posted by David Hardy · 6 April 2006 03:34 PM

Gun Owners of American has a webpage with great video of the New Orleans gun confiscations.

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DC official stands up for gun ownership

Posted by David Hardy · 27 March 2006 02:25 PM

DC Taxicab Commissioner Sandra Seegars is standing up for gun ownership. It goes without saying that DC has decided not to renew her term.

Just verified -- she is the Seegars of the DC lawsuit!

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We need to regulate cars as tightly as we regulate guns

Posted by David Hardy · 25 March 2006 10:50 AM

The Charlotte Observer has a story regarding Mohammed Taheri-Aza, the guy who drove a car into the crowd of students in order to protest beliefs that Moslems are violent. (Yeah, he sure did a job of proving his point....)

He left a note: "I would instead use a handgun to murder the citizens and residents of Chapel Hill, North Carolina, but the process of receiving a permit for a handgun in this city is highly restricted and out of my reach at present, most likely due to my foreign nationality,"

(Hat tip to Dan Gifford).

Continue reading "We need to regulate cars as tightly as we regulate guns"

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FLA bill on firearms in cars

Posted by David Hardy · 20 March 2006 10:13 AM

The Brady Campaign is celebrating the tabling of a Florida bill that would allow firearms in locked cars on private property, but United Sportsmen of Florida is renewing its push (see extended remarks).

Continue reading "FLA bill on firearms in cars"

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New Orleans--latest twist

Posted by David Hardy · 18 March 2006 09:41 PM

NRA reports that the mayor and city government have caved, and after denying that it seized any guns, the city admits that it did, and arrangements are being made for their return. Details on how to file a claim are in extended remarks.

Continue reading "New Orleans--latest twist"

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New Orleans gun seizures -- where some guns may have gone

Posted by David Hardy · 17 March 2006 02:50 PM

A Grant Parish deputy has been charged with selling a seized firearm (albeit not one seized during Katrina).

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Delaware CCW reform

Posted by David Hardy · 17 March 2006 08:48 AM

CCW reform is heating up in Delaware. Not surprising, since both Sarah Brady and NRA 1st VP John Sigler live there.

(I find the former rather curious. NRA VP is an unpaid and quite parttime job -- so is NRA President. But Brady is supposed to be running their shop, and I assume getting paid for it. Dewey Beach, Del. looks to be about 120 miles by road from DC, making it a long commute at rush hour!

Ah--found their IRS form 990 for 2004. It lists Brady as chairman, averaging 40 hours per week and drawing $146,000 in pay and $5K in benefits (p. 12).

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Alaska Army command restricts troops' arms

Posted by David Hardy · 15 March 2006 09:16 AM

Major General Charles H. Jacoby Jr., the Commanding General of US Army Alaska, has forbidden troops under his command to carry concealed, even off duty and off base, in addition to otherwise restricting their right to arms. More details in extended entry below.

[Hat tip to Budd Schroeder and the Firearms Coalition.

Continue reading "Alaska Army command restricts troops' arms"

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Pro-gun bills in PA

Posted by David Hardy · 15 March 2006 09:06 AM

Pro-gun legislators in PA have introduced two interesting bills.

One, by Rep. Metcalfe and Pippy, would require destruction of the state background checks after they are passed -- as it is, police are apparently keeping the records. The other, by Rep. Cappelli, would adopt the "castle doctrine," removing the retreat requirement before self-defense (it's hard to tell from the article just how this modifies current PA law -- article refers to protecting homeowners, but at common law the retreat requirement didn't apply in one's own home, as I recall).

Here's another report, referring to Rep. Cappelli and two other unnamed lawmakers.

[Hat tip to Kathy Habel]

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Letter to the editor

Posted by David Hardy · 12 March 2006 12:16 PM

The Fredericksburg (VA) Lance-Star has an Op-Ed by Dennis Hannick responding to an earlier collective-rights piece. They have an amusing layout of it -- here's the image.

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Ohio legislation

Posted by David Hardy · 9 March 2006 08:13 AM

The Ohio house has passed pro-gun legislation, but the governor is threatening a veto.

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Right to bear arms in Maryland

Posted by David Hardy · 8 March 2006 08:28 AM

Via the Bitch Girls: the Maryland legislature is debating a constitutional amendment guaranteeing the right to arms for self-defense and recreation. The present Maryland constitution has no right to arms provision.

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Update on Washington open carry law

Posted by David Hardy · 6 March 2006 08:43 AM

Via Publicola: here's a blog entry by a fellow who beat a local Washington state prosecution. It sounds as if he was charged, not under the state law, but under a local replica of it, and the court held that was ruled out by the state pre-emption statute.

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Hilarious pro-gun ad

Posted by David Hardy · 3 March 2006 05:09 PM

Right here. Caveat: fairly big wmv medial file, but unless you have dialup, well worth it.

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Poll of Nat'l Ass'n of Chiefs of Police

Posted by David Hardy · 3 March 2006 04:12 PM

The National Association of Chiefs of Police have released their 2006 poll of 14,000 members. Remember this is a poll of chiefs of police, who historically have been less pro-gun than the officers on the beat.

92 percent of the respondents supported civilian gun ownership for self-defense or sport.

Ninety-five percent believe criminals obtain firearms from illegal sources.

When asked if they opposed citizens obtaining concealed weapons permits, only 40 percent said yes.

[Hat tip to Bill Bailey]

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Washington open carry ban

Posted by David Hardy · 3 March 2006 02:00 PM

Clayton Cramer has a post on the origins of a Washington state law that makes it illegal to openly carry in cities "under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons." Apparently it was enacted in 1969 out of fear that the Black Panthers were going to come to the capitol while armed. They didn't, but the law remains.

Personally, I think it's probably void for vagueness. I can see the intent to intimidate part as proper, but "warrants alarm for the safety" is not a very clear guideline. If a legislature, dropping the arms part, were to outlaw "any conduct or behavior that warrants alarm for the safety of another," I suspect it'd go down in flames under the void for vagueness doctrine. Warrants in whose eyes? Just what is "alarm"? It doesn't forbid conduct that *does* cause alarm, but conduct that "warrants" such, so that a person could be charged even if nobody got alarmed.

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Motion for contempt in New Orleans case

Posted by David Hardy · 3 March 2006 12:26 PM

NRA and SAF have filed a motion to hold the New Orleans mayor in contempt of court. The ground is that New Orleans has refused to return seized guns, in defiance of the court's injunction. Indeed, it appears to arguing that it doesn't have any guns because it didn't seize any, even though some of the confiscations were videotaped.

[Hat tip to Bruce Stern]

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Interesting events in Illinois

Posted by David Hardy · 2 March 2006 06:53 PM

Some Illinois lawmakers want an "assault weapon" ban -- and certain manufacturers located in the state, e.g., Springfield Armory, Armalite, Les Baer Custom and Rock River Arms Inc -- say they'll pull out of the state if it passes. The Pantagraph has the story.

[Update: if they want a gun-friendly state, they ought to consider Arizona. You can carry a holstered gun in your glove compartment, without a CCW permit. I used to do that, and was stopped twice for traffic violations. I did the polite thing and told the officer before reaching for my registration. One of them asked my opinion on my .45, since he was thinking about buying one. The other told me how easy it was to get a CCW permit "and then you can carry *anywhere* concealed!"]

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Armed journalists in Iraq

Posted by David Hardy · 1 March 2006 11:50 AM

Opinio Juris has a posting on journalists applying for gun permits in Iraq (sounds like a plan to me!) and disputing the International News Safety Institute's claim that packing in self-defense might lose them Geneva Convention protections. (The protective value of which lies in ... oh, having the INSI issue an open letter condemning your decapitation).

[via Gene Volokh at the Volokh Conspiracy.

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Indiana legislation

Posted by David Hardy · 26 February 2006 08:43 AM

Lots of pro-gun legislative activity in Indiana.

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More on Cheney hunting accident

Posted by David Hardy · 19 February 2006 07:31 PM

Egad--as further proof of how slow the news is, Drudge reports that the mainstream media plans a full court press next week on the Cheney hunting accident. It'll be the cover story for both Time and Newsweek, no less. UPDATE: Glenn Reynolds has an article in the Guardian on this, commenting on the media's instinct for the capillary.

In the meantime, here's a webpage that replicates the shot patterns and concludes the accident happened as was reported -- the shot spread would be typical of 30 yards or so and not of any closer distance.

That matches my observation -- but is probably beyond the MSM, which at various times described Cheney as shooting "buckshot," the victim as being hit by 200 pellets, etc., etc.

[Hat tip to Eric Bezhoff]

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Gallup poll on gun ownership

Posted by David Hardy · 18 February 2006 11:34 AM

The most recent Gallup Poll shows some interesting results:

As might be expected, Republicans are more likely to own guns than Democrats. 55 vs. 32% (for ownership by anyone in the household). As to reasons for owning, GOP were more likely to name hunting and target shooting than Demos (I'd guess the Demos are disproportionately urban, where self-protection is a more likely purpose than hunting or plinking).

Percent of households owning guns is up over the last decade. It's about 40% vs. 33% in 1999. (On the other hand, 1999 showed a low figure compared to previous polls, so it's possible that gun ownership then dipped, or that the poll data that year was atypical).

Here's John Lott on a 2005 poll. Amusing results: asked if arming pilots would make aircraft safer, the response was 2:1 yes. Asked if arming judges would make courthouses safer, the response was majority, no. I suppose that says something about the popular perception of judges!

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Hunting risks

Posted by David Hardy · 17 February 2006 11:20 AM

Prof. Volokh has a posting on risks of hunting compared to those of other sports. Interesting figures (nationwide, swimming results in about 15x as many accidental fatalities as hunting, and boating about 9x as many. In Colorado, fishing results in as many fatalities as hunting).

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House hearings on ATFE conduct at Richmond Gun Shows

Posted by David Hardy · 16 February 2006 04:33 PM

The Richmond Times-Dispatch has the story. Hearings will resume with ATFE testimony on Feb. 28.

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More gun confiscations in Louisiana

Posted by David Hardy · 16 February 2006 12:10 PM

Over at the Liberty Zone, Nicki reports a new (Jan. 28) case of firearms seizures in Louisiana. This one was in the town of Gonzales, and when the person protested that there was no law against open carry, he was told "tell it to the judge." The prosecutor wisely dropped the charges.

Sounds like a 1983 suit to me.... (Hat tip to Publicola)

UPDATE: Sounds like it wasn't his first, er, negative encounter with law enforcement. More here. No guarantee it's the same person, but it is the same name and locale.

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Don Kates' observation on gun accidents

Posted by David Hardy · 13 February 2006 08:23 AM

From an email from the prolific Don K.:

My many decades of conversations with laypersons on this subject show that the general populace has (largely because of mendacious propaganda) an almost comical misunderstanding of the subject. Common misperceptions include: (1) that gun accidents take thousands of lives each year; (2) that the number of fatal gun accident deaths (FGAs) is growing rather than rapidly shrinking; (3) that large numbers of infants and small children die in gun accidents; and (4) that the number of gun accidents grows with increasing numbers of guns.

The facts are:

[1), (2) and (4)] in 1967 there were slightly over 97 million civilian guns in the nation – and FGAs took over 2,700 lives. As of today when there are over 280 million guns civilian guns FGAs have shrunk to c. 770 per year. By way of comparison, falls, fires and drownings each take over 5,000 lives per year.

(3) The number of children, especially small children, killed in gun accidents is minuscule – though when it happens any such death receives nationwide publicity.

Post-natal mothers are commonly advised to take iron supplements. On average, nationwide 5-10 infants under age 2 die each year from swallowing iron pills (which look like candy).. In contrast, on average, each year 0-2 children of that age die in gun accidents. (An average of 36 children age 2 and younger die from consuming common household poisons of all type.)

On average, nationwide, four times as many children under age six die of accidental poisoning as in gun accidents. Likewise four times as many such children die in fires caused by their playing with cigarette lighters as in gun accidents. 20 times as many such children drown in bathtubs and home swimming pools as in gun accidents.

As to teenagers, on average 135-140 die in firearms accidents each year compared to the 5,700-6,000 teenagers who die in motor vehicle accidents.

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Winchester closing doors in New Haven

Posted by David Hardy · 11 February 2006 02:23 PM

Winchester is closing down its plant in New Haven, CN. Winchester brand firearms are made by US Repeating Arms Co., which states it will continue their production overseas (to complicate matters, the brand name is owned by Olin).

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State legislative updates

Posted by David Hardy · 11 February 2006 11:17 AM

If you're in Virginia, Pennsylvania, Kentucky, South Carolina, Hawaii, Illinois or Nebraska, check the ILA legislation pending webpage.

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Thought for the day

Posted by David Hardy · 8 February 2006 07:00 PM

Here's a webpage on existing judicial vacancies.

It'd be fun if some progun organizations were to start to push good, solidly qualified candidates for those posts. There's two openings in the DC Circuit and one on the 4th Circuit (Richmond). Hmm... Prof. Bob Cottrol and Prof. Nelson Lund and Dean Polsby could split those. Two in the 3d Circuit (Philadelphia, I think) ... Prof. Nick Johnson. One in the 5th Circuit -- the trial judge in Emerson might do nicely.

I can't vouch for the last, but all of the others would be very, very, hard to oppose. Any one of them knows more about constitutional law, or any other form of law, than does the entire Judiciary Committee (both parties included, I might add).

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News from Virginia

Posted by David Hardy · 8 February 2006 12:06 PM

Word from Virginia Civil Defense League that two pro-gun bills passed the VA House. The first, which prohibits businesses from enforcing rules against firearms in locked, parked, cars, passed by 74-22 . The second, which prevents emergency powers being used to disarm, passed unanimously.

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Repealing gun laws to attract Cabella's

Posted by David Hardy · 8 February 2006 08:59 AM

The Chicago suburb of Hoffman Estates is repealing its local gun law, with the apparent motivation of attracting a big Cabella's outlet.

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Going postal in gun free zones

Posted by David Hardy · 7 February 2006 10:02 AM

Donald May has a Townhall column by that title. [Hat tip to Dan Gifford].

Interesting question: mass killers often are driven by rage at "the system," the status quo, and are sometimes supposedly impossible to stop because they desire their own death.

Strange that they have never targetted, oh, a gun show or police station.

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Texas ACLU supports firearm rights

Posted by David Hardy · 6 February 2006 11:42 AM

The pro-gun Texas ACLU strikes again!

[Hat tip to Dab Gifford]

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Kates & Kopel -- new articles

Posted by David Hardy · 5 February 2006 03:42 PM

Don Kates and David Kopel have articles in the current issue of Bridges: An Interdisciplinary Journal. I've posted the text (sans footnotes) of Don's article in the extended remarks below. Dave's article, "The Scottish and English Religious Roots of the American Right to Arms," is available in pdf on his website.

Continue reading "Kates & Kopel -- new articles"

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Virginia progun measures advance

Posted by David Hardy · 3 February 2006 09:48 AM

The Virginia Citizen's Defense League is reporting a number of pro-gun results in the Virginia legislature, at the subcommittee level. The Militia, Police and Public Safety subcommittee killed Rep. Watts' bill to extend gun show requirements to just about every gathering at which a gun is sold, and passsed measure to allow judges to delegate CCW issuing authority, define "personal knowledge" which can be used to refuse a permit, to make VA permits reciprocal with all other states,
Today the subcommittee votes on a bill to allow firearms in parked cars (if locked)--I assume that's like the proposed FLA legislation, that forbids a business to bar them -- and to prevent use of emergency powers to disarm citizens, as was done in New Orleans.

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Mysterious story

Posted by David Hardy · 1 February 2006 09:52 AM

The NY Post is reporting that the NRA blocked appointment of NY Mayor Bloomberg's girlfriend to head the Federal Deposit Insurance Corporation.

This sounds very, very, strange. I doubt NRA would know he had a girlfriend, let alone that she was applying for a federal appointment, let alone try to block it in vengence. And the FDIC is not exactly an area where they'd have much clout. Nor the White House Personnel office (just try blocking an appointment that a powerful patron wants!).

The story admits that NRA HQ said it knows nothing of any such event. And it cites nobody as the source of the story (except an unnamed Senate aide, who says it was "obvious" that NRA did it), and can't name anyone as having blocked the nomination (except to say that "Any" of NRA's Senate allies "could have" placed a hold on it).

[Thanks to Budd Schroeder for the link]

Continue reading "Mysterious story"

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People who need sense knocked into them

Posted by David Hardy · 31 January 2006 05:39 PM

"After her 11-year-old son was suspended for twice bringing a loaded handgun to school, Linnea C. Holdren, 43, said the matter was pretty much beyond her control. "I can't lock up his guns," she told police. "They belong to him, and he has a right to use them whenever he wants to use them." (The boy was expelled in January, and Holdren, who is a teacher at her son's Shickshinny, Pa., elementary school, has been charged with felony endangerment.)"

Courtesy of News of the Weird. Other news reports note that her statement to police came after they offered to give her a trigger lock.

Let's get one thing straight, teach:: Dr. Spock was NOT cut out to be a firearms safety instructor.

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Alito confirmed

Posted by David Hardy · 31 January 2006 10:31 AM

It's now Justice Alito. Vote was 58-42. Schumer is complaining that he wishes the nominee were a "uniter" rather than a "divider," although it's hard to see how a Supreme Court Justice can be either.

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Kerry on Alito filibuster

Posted by David Hardy · 28 January 2006 10:18 AM

In the opening move of the 2008 Democratic presidential primary, John Kerry announced (on Kos) that he supported a filibuster of the Alito confirmation, which he argues will mark a "radical ideological shift" in the Supreme Court. Here's another article on his call.

Kerry's statement that Alito was nominated because "Under fire from his conservative base for nominating Harriet Miers--a woman whose judicial philosophy they mercilessly attacked--President Bush broke to extreme right-wing demands," puts me in mind of the remark that all the Left had to do to keep Alito off the Court, 100% certain, was to endorse Miers. Instead -- how many times did we hear (and with justice) the term "cronyism" invoked?

The comments on Kos are interesting, too. If the intent was to position Kerry for an appeal to the Left, without actually having to risk a fillibuster, it may not work out as planned. Kos's readers are pumped up on the idea. On the other hand, the idea may be to make a gesture, accept a quick cloture vote to end the fillibuster, and roll over. Kerry gets publicity and appeal to the Left, the Demo senators looking at re-election in Bush-leaning states get to vote against the filibuster and seem more conservative, and both go away happy.

[UPDATE: the question was how Hilary Clinton would go. Back Kerry in an appeal to the Left (at the cost of appearing to follow your likely rival) or oppose as part of her moves to try to sound less Left. She's chosen the former.

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Arizona bill modelled on Florida Self-Defense statute

Posted by David Hardy · 27 January 2006 08:51 AM

The Arizona Senate is proposing self-defense legislation modeled on that of Florida. Different bills would either (a) establish "no retreat" or (b) put the burden on the prosecution to disprove self-defense when it is alleged. Prosecutors are objecting, of course.

(I'm not sure either marks a major change in the law. On the first, present Ariz. law simply requires that the force used be "reasonably necessary." Earlier caselaw had refused to impose a retreat requirement. On the other hand, I suppose it's open to argue that availability of retreat made force not "reasonably necessary," thus bringing it in by the back door. With the other, if I remember correctly, the defendant has the burden of proving self-defense by a preponderance of the evidence (it's more likely than not to have been the case), whereupon the burden shifts to the prosecution to rebut it by proof beyond a reasonable doubt.

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Google China's censorship and the right to arms

Posted by David Hardy · 26 January 2006 09:03 AM

I can't say if this is significant, but--

If you Google "right to arms" on standard Google, you get over 37,000 hits. The first page has eight references to the Second Amendment, seven of them supporting an individual right. The lead relevant article is Glenn Reynold's argument that arms ownership ought to be the next international right. Second page has nine results relevant to an individual right.

Google the same phrase on Google.cn and you get all of 13 hits. About half relate to coats of arms, and the remainder are citations to Uviller's anti-individual right book.

I tried "freedom of speech" on google.cn and curiously got nearly five million hits.

[UPDATE: commenters have tried the same, and gotten tens of thousands of hits. A few hours ago, I tried "right to arms" again (with quotation marks in), and got about 3,500. Then after the first comment, a few hours ago,

I tried that again, and got 35,200. (I know, because I've got two computers here, and left the other one running). I just tried it now and got 37,100.

So I tried "freedom of speech," which some hours ago got just under five million. Right now it's under six million -- 5,860,0000. Maybe it's a new system, and the search engines are adding to it?]

Ah, here is the entry on the "history" pulldown of my browser. The enitirty of the search (12 rather than 13 hits by my count) is given in the extended entry.

Continue reading "Google China's censorship and the right to arms"

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Seegers v. Gonzales cert denial

Posted by David Hardy · 26 January 2006 08:38 AM

The Supreme Court has denied cert. (declined to take the case) of Seegers v. Gonzales. That was one of two challenges to the DC handgun ban, and the DC Circuit upheld a dismissal for lack of standing (i.e., no right to sue to challenge a statute, absent prosecution under it).

The other challenge, Parker v. DC, remains pending in the DC Circuit.

[Update: Alan Gura, counsel for the Parker plaintiffs, writes:

We're currently awaiting a scheduling order in Parker. Recall that we made a much better record on standing.

The appellees' attempts to dismiss the Parker appeal on standing grounds was denied by the D.C. Circuit in November. While standing remains an issue in the case, the court has also sought briefing on the merits.

Stay tuned.]

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Sen. Judiciary Comm. passes Alito; floor debate tommorrow

Posted by David Hardy · 25 January 2006 06:59 PM

On a straight party-line vote, the Senate Judiciary Committee recommended Judge Alito's confirmation. Senate floor debate should begin tommorrow, with vote (absent filibuster) by end of week.

I wonder if the opposition will renew its interesting pair of arguments: (1) Alito doesn't have enough respect for individual liberty and (2) he should defer more to Congress... when it restricts individual liberties.

[UPDATE: the NY Times is calling for a fillibuster, admitting that it would fail, and probably hurt the Democrats, but arguing that Alito's confirmation would be even worse.]

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Brady Campaign active in Washington State

Posted by David Hardy · 23 January 2006 03:27 PM

A Brady Campaign press release says that Washington's Senate Judiciary Comm. will hold hearings Tuesday at 3:30 PM on a law to require background checks for gunshow purchases from non-dealers.

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Interesting events in Wisconsin

Posted by David Hardy · 22 January 2006 10:19 AM

In 1998, Wisconsin voters overwhelmingly passed a constitutional amendment guaranteeing that "the people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

Five years later, in State v. Hamdan, 264 Wis.2d 433, 665 N.W.2d 785 (2003) [text is in extended remarks below], the state Supreme Court applied it to a CCW charge. Defendant Hamdan was a store owner in a very high-crime area (he'd already been on the receiving end of four robberies), and kept a pistol under the counter. At closing time, he took it into a back room for storage, and at that precise moment officers arrived for a business license check. He popped it into his pocket and came out, and when the officers asked if there was a gun in the store (they later testified that the majority of businesses in the area had one for protection) he said yes and produced it.

He was charged with CCW (Wisconsin caselaw is so broad that "carrying" concealed includes merely having a firearm concealed within reach) and convicted at a trial in which he was not allowed to introduce evidence of his self-defense motives, of crime in and around the store, etc. The Wisconsin Supreme Court reversed the conviction, pointing to the constitutional provision, and the fact that he was on his own property at the time:

"Considering the diminished public interest in applying the CCW statute in the context of Hamdan's conduct, we hold that the State's police power must yield in this case to Hamdan's reasonable exercise of the constitutional right to keep and bear arms for security. This right, when exercised within one's own business and supported by a factual determination that no unlawful purpose motivated concealment of the weapon, will usually provide a constitutional defense to a person who is charged with violating the CCW statute. Because Hamdan was not permitted to assert this defense, his challenge to the CCW statute was not fully addressed by the circuit court and his conviction under Wis. Stat. § 941.23 was not proper."

The court also noted that the standard rationales for CCW laws (avoid risk of rash violence, put others on notice that a person is armed so they won't start a fight with him, etc) were inapplicable, or only marginally applicable, to a small business owner trying to protect himself. Indeed, putting criminals on notice that the owner is armed and just where the arm is would only give the criminals the advantage. It also noted that the constitutional protection relates to "security," which it said was broader than "self-defense" -- acting in self-defense implies avoiding an immediate threat, whereas being "secure" suggests a general feeling of protection in the long term.

The one problem was that the challenge was as-applied, on the facts. So it didn't lay out a standard of "you can carry concealed on your own property" but rather if you are charged with CCW under those facts, you can argue to the jury that you had lawful needs to carry, and that open carry was not feasible. The court strongly suggested that the Legislature revisit the law to clear things up.

Wisconsin legislators are now pushing the Personal Protection Act, which provides for CCW licenses. Last session, they passed another bill, SB 214, but it was vetoed. Here's an analysis of the present bill.

Continue reading "Interesting events in Wisconsin"

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Stolen guns

Posted by David Hardy · 19 January 2006 08:57 AM

Criminals use stolen guns (surprise!). So how can antigunners get political capital out of that? Push laws that will punish the theft victim if they fail to report the theft.

Why wouldn't someone report a theft? Well, they'd have a little incentive if anyone cared. Twenty or so years ago I had a pistol stolen from the glove compartment in my VW bug. I called in a report, and it was noted. I pointed out that the glove compartment door was glossy metal, would probably hold great fingerprints. Dust it, get my prints and deduct those, and you have those of the thief. The police said they didn't have enough time. I offered to drive to the central police station and park in their lot, so the fingerprint tech had only to come outside and dust. Naw, they said, the fingerprints will already have "evaporated." Yeah, sure, they evaporate. I gave up.

I'm told that shipments to dealers are often stolen in transit (which screws up recordkeeping and tracing, BTW). So why not crack down? Dealers and gunowners would love it. Shouldn't be too hard to compute out the distribution nodes where guns vanish. Or to park a few radio locators in, say, the buttstock of military-type rifles. Of course that doesn't lead to more legislation -- just to solving the problem.

[UPDATE, response to comment: it was a fingerprint tech with Tucson Police Department who told me the fingerprints would have evaporated (by the next morning, incidentally). It was a pretty clear brush-off. A year or so later I had an attempted breakin, where someone had tried to jimmy open a window. I figured they'd probably left some prints on the glass, but again couldn't convince anyone to dust for them -- they said they'd file the report and that was all they could do. To be fair, in that case I couldn't take the window down to the police station. But I'd have thought a stolen gun was cause enough to dust a car sitting in the police station parking lot!]

ANOTHER UPDATE: Naw, not much odds of civil liability here. Courts have gone against holding law enforcement liable for failure to prevent crime, on the basis that then law enforcement agencies would be liable to countless lawsuits. (I can see that, although in severe cases, such as Warren v. DC -- where a 911 dispatcher promised women that help was on the way, and then didn't even send out a radio report, with result they were subjected to 14 hours of rape and abuse -- you might think they'd recognize an exception).
I played a role in initiating the first successful suit against a parole board that let loose a dangerous guy -- gad, now I forget the case, but it concerned a murderous psychotic who had five psychiatrists opine that he was dangerous, and the parole board, composed of political hacks, let him out anyway, and he went on to commit a few murders in the Brown Fox Tavern. I think his name was Mitchell Blazak, something like that. I was a young pup law student clerking for a firm here, back in 1973 or 74, and got a memo on the case. The attorney wanted to sue the tavern owner for not giving in to the robber's demand, and I thought there was no case there -- no duty to yield to a criminal demand. But the robber's name stood out, and I realized I'd just seen an opinion from a State court upholding his conviction for attempted murder. Pulled out the opinion -- his conviction had been affirmed only a few months before the later robbery -- what gives here? Investigated, and argued to the attorney that there might be a case against the parole board for turning him loose. He went with it, it went to the Ariz. Supreme Court, and they held the parole board might be liable if gross negligence could be proven.

Permalink · contemporary issues

Virginia bill to control any "firearms show"

Posted by David Hardy · 18 January 2006 12:58 PM

Virginia Rep. Vivian Watts has introduced House Bill No. 1447.

Existing Virginia law requires the promoter of a "firearms show" to give 30 days' notice to police. "Firearms show" is defined as an exhibition, not on a dealer's premises, conducted "principally" for purposes of showing and selling firearms. HB 1447 would change that to include any gathering of two or more people " in which one of the purposes" is selling firearms. Presumably this is directed at swap meets, although it would also include a yard sale. In fact, it might include any gun sale (since two people have to gather in order to sell anything). The bill would also expand the definition of "promoter" to include not only the person setting up the show, but anyone "inviting others to participate in a firearms show or advertising a firearms show in the Commonwealth."

[Chuckle--when I worked at Interior, Ms. Watt's husband, David, was in our division. And Sen. Carl Levin's wife Barbara was in it, too.]

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Nebraska online poll

Posted by David Hardy · 17 January 2006 04:04 PM

A Nebraska newspaper is running an online poll on "Should the Legislature pass a law allowing concealed weapons?" From that description, it's hard to judge just what is being proposed (or even whether this is a proposal pending). Whatever it is, the ayes are scoring at 93% just now.

Permalink · contemporary issues

Alito's a shooter

Posted by David Hardy · 14 January 2006 09:34 AM

At least he pops clay pigeons. (Via The Bitch Girls),

Also from TBGs--Illinois has a paperwork tie up that's preventing processsing Firearm Owner ID cards (i.e., gun possession permits) before their renewal date. Possession of a gun without the permit is a felony. Altho the lack of permits is the government's fault, the most they're saying is that law enforcement will have discretion whether to arrest.

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Sideline on Ted Kennedy on Alito

Posted by David Hardy · 11 January 2006 03:35 PM

Over at the Volokh Conspiracy, Todd Zywicki suggests that Kennedy's questioning of Alito regarding Concerned Alumni of Princeton resembles McCarthy's attempts at guilt by association.

There's another parallel. Kennedy argues the committee must subpoena the papers of William Rusher, who was prominent in the group, from the Library of Congress:

"And I asked Senator Specter make a formal committee request for the documents in the possession of the Library of Congress as part of the William Rusher papers. Mr. Rusher was the publisher of the National Review, was an active founder and leader of CAP.

Do you have any hesitancy or reason for us not to look at those documents?"

Kennedy then gets into an argument with Chairman Spector over whether he can get a committee vote to issue the subpoena, "my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress — that purpose and that purpose only.

And if I’m going to be denied that, I’d want to give notice to the chair that you’re going to hear it again and again and again and we’re going to have votes of this committee again and again and again until we have a resolution."

Later: "I wonder what these papers contain, and what the Republicans do not want us to see. Why they want to just, uh, rush this nominee through.”

Nice bit of grandstanding. A five minute Google search turned up the index to the William Rusher Papers at the Library of Congress. The index notes things like "The microfilm in these papers was produced by the office of the National
Review and is included in the collection as its own series. It is available for research use in the Manuscript Reading Room." There's also over two hundred boxes of hardcopy.

The only restrictions I can find on access pertain to his personal diaries, which cannot be released until 50 yrs after his death.

So it looks as if Senator Kennedy need only walk across the street to the LoC and take a look.

[UPDATE: I guess they figured it out. Bench Memosis reporting that Senate Judiciary Committee staffers reviewed the relevant portion of the Rusher papers at the LoC and found not even a mention of Alito, and that the New York Times reviewed them two months ago and couldn't find anything either. Not much basis for Kennedy's grandstanding over needing a subpoena to get at those secret files].

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Are remarks about an attorney's oral argument actionable?

Posted by David Hardy · 3 January 2006 06:00 PM

While doing a bit of research, I came across an unusual, and rather humorous in retrospect, 7th Circuit opinion.

Facts: back in the early 80s, a suit was brought challenging a city ban on gun dealerships, alleging various grounds including the Second Amendment. It ultimately made its way to the 7th Circuit, which (as would have been expected a quarter century ago) ruled against plaintiffs.

Following it, the Second Amendment Foundation's publication had an article stating that three attorneys were to argue in the Circuit, court had allowed 30 minutes for argument per side, and the agreement was that the first was to use not more than 6 minutes. Unfortunately, the article continued, he had used 13 minutes, throwing the timekeeping into disarray, and was rambling and often pointless.

The first attorney sued for defamation, seeking $5 million in actuals and $10 million in punitives. Okay.... As might be expected, he lost.

This is the first time I've come across an attorney suing over a description of his oral argument, and arguing the case in the same court in which the argument was delivered. (Tactical tip for those who haven't been in the appellate trenches: a three-way division of time, let alone of a mere 30 minutes of time, does require almost superhuman time discipline on the part of the first two speakers -- and leaves you open to judges on the other side trying to tie up the first two with questions in order to throw the third advocate off).

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Wrap of gun issues in Congress, 2005

Posted by David Hardy · 3 January 2006 05:08 PM

Over at Volokh Conspiracy, David Kopel has a wrapup of 2005 Congressional issues relating to firearms. As might be expected, it was a very good year.

One comment is worthy of note. Dave listed repeal of the DC handgun ban as a hope for 2006, and attorney Alan Gura commented:

"I would hope that "repeal of the D.C. ban on handgun possession and on possession of long guns in a condition usable for home defense" will not be necessary, as these laws should be struck down in Parker v. District of Columbia, D.C. Circuit No. 04-7041. I look forward to arguing the case on the merits sometime in the coming year. http://www.gurapossessky.com/newsandresources.htm"

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New blog with second amendment commentary

Posted by David Hardy · 31 December 2005 03:52 PM

Via the Volokh Conspiracy:

David Friedman, a liberarian writer, has a new blog.

He's posted an approach to the Second Amendment which is interesting, although I suspect only persuasive to libertarians (who don't need converting on the right to arms).

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Might be one heck of an insanity defense case...

Posted by David Hardy · 30 December 2005 07:14 PM

A ... well, I'd be tempted to call it a rather very small scale terrorist attack in Chandler, Arizona. I suppose it's a little more like an interesting hypothetical for an insanity defense. Guy crashes car into a Home Depot, drives thru the inside until he smashes the paint department, sets the paint department afire, and then waits for arrest.

Motivation was (a) to get even for a lack of promotion; (b) to protest proposals for a fence along the border with Mexico and (c) to make the US more free. Along the way he locked his dog in the trunk with his Quran since he wanted to show it to the dog. But the dog, being an unclean beast, was upset at being confined with a holy book.

Home Depot in the area says if he is released, they'll post armed guards. It might be easier to let some employees pack. And hand them dart guns with antipsychotics as the first line of defense.

Thanks to Landis Aden for the tip....

Permalink · contemporary issues

MTV movie on guns today

Posted by David Hardy · 29 December 2005 10:25 AM

CNS News reports that MTV is airing a documentary on guns today, to feature a convicted felon, a gang member, a crime victim who advocates self-defense, and a hunter. And that GOA and SAF have pointed out that (given that the proportion of criminal use is in the tenths of a percent) giving 50% of the time to criminal users is hardly proportionate to reality.

[UPDATE: read the trackback]

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San Fran backs down a bit

Posted by David Hardy · 28 December 2005 01:50 PM

According to this report, San Francisco has agreed to postpone enforcing the Proposition H prohibition on gun and ammo sales until March 1. The NRA-backed suit challenging it is set for hearing in mid-February.

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Canada's proposed gun ban raises gun sales

Posted by David Hardy · 27 December 2005 02:49 PM

According to the Globe and Mail, the proposal to ban handguns in Canada has led to a great increase in handgun sales. (The same thing happened here in the US just before the Brady Act and the "assault weapons" ban).

""People are saying, 'Piss off a Liberal: buy a handgun,' " said Len Kucey, owner of Phoenix Indoor Range and Gun Shop in Edmonton, who has also seen a boost in sales."

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The Second Amendments (band)

Posted by David Hardy · 23 December 2005 12:21 PM

Via Cam Edwards: a country band known as the Second Amendments will be touring with the troops in Iraq. It's composed of five congressmen who -- no surprise -- are all pro-gun

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USA 3000 Airline bans guns in baggage

Posted by David Hardy · 23 December 2005 10:24 AM

From Don Causeu of The Hunting Report, via Todd Rathner:

USA 3000 Airlines, has changed its baggage policies to prohibit passengers from transporting any firearms or ammunition as checked baggage. That’s right – any kind of firearms or ammunition.

We learned of the shift in policy from subscriber Rob Hoskins, who tells us he spent some time arguing with a company representative via e-mail about the wisdom of such a move. We haven’t done the same, but we have confirmed with the company that it has imposed a blanket ban on the transport of firearms as checked baggage. That’s enough for us to call for a boycott of their services until the company changes its mind. We are going to make sure the NRA knows of this, and perhaps they will join the crusade.

In case you haven’t heard of USA 3000, it operates from cities in the Northeast and Midwest to Florida, The Dominican Republic and Mexico. The company also operates many charter flights to the Caribbean and other Mexican cities in conjunction with a tour operator named Apple Vacations.

To contact them: 1-888-479-3001, or send e-mail to [email protected].

UPDATE: a reader reported that the email address doesn't work. Their contact us page shows "CUSTOMER SERVICE
1-888-479-3001 Call us if you wish to share an experience with us, or send e-mail to [email protected], a letter to the address below Attn: Customer Services." Perhaps the message bounces back unless the subject line is "Atten: Consumer Services"?

Their Restricted Items page indicates:

"Before you pack your checked or carry-on luggage please see the list of restricted items below. You may not realize common everyday items that may be classified as dangerous goods which are restricted for transport by USA3000 Airlines:

Oxygen Needs: USA3000 does not carry passengers who are Oxygen dependent while in-flight.

Fireworks: Signal flares, sparklers or other explosives ...

Flammable Liquids or Solids: Fuel, paints, lighter refills, matches ...
......

Weapons: Firearms, Ammunition, gunpowder, mace, tear-gas, or pepper spray ..."

Now, it's not 100% clear whether that's warning that these items are restricted, but not totally verbotten -- obviously, you can't put a .45 and two clips in your carryon without attracting a lot of attention from TSA. At the end is "Firearms and Ammunition may not be carried by a passenger on USA3000 Airlines," but once again, what does "carry" mean?

A quick Google turned up 2004 report of the airline refusing to carry a trap shooter's shotgun in baggage: "The airline, based in Newtown Square, Delaware County, decided not to carry firearms as it focused on its primary business of transporting leisure travelers to sunny destinations, Spokesman Trevor Sadler said. The company, started more than two years ago with two planes, now has a fleet of 10. "We made a conscious decision to not do that at this time," Sadler said, adding that the policy is under review. He couldn't say if or when it might change."]

Continue reading "USA 3000 Airline bans guns in baggage"

Permalink · contemporary issues

U of Arizona moving to terminate shooting programs

Posted by David Hardy · 21 December 2005 11:38 AM

My alma mater, U of Arizona, is moving to terminate its marksmanship program. I don't know exactly how far it dates back, but know it had been around for some time before I attended (some 36 years ago). Click on the above link to get addresses and emails of people to contact. [Hat tip to Herb Chambers on this].

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Article on Boston gun law enforcement

Posted by David Hardy · 19 December 2005 02:00 PM

From the Boston Herald comes an interesting article on enforcement of their gun laws. It begins by sounding like a call for still more (i.e., the mandatory one year sentence only applies if the person carries outside the house without a permit) but ends with the argument that authorities are not enforcing the existing laws -- e.g., since possession of an illegal gun in the home is "only" subject to a max of two years imprisonment, they often don't bother charging it or seeking the two years, even in major drug cases.

(I thought the case they cited at the outset rather strange ... three guys caught with two kilos of coke and a full auto AK-47, and the article says the only gun charge could be a two year misdemeanor (they have them in some states). Assuming the state law says nothing about full auto (and this being Massachusetts, that's hard to believe), they'd have only to turn him over to the feds. The federal penalty for unlicensed full auto is up to ten years).

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More on NY

Posted by David Hardy · 19 December 2005 09:16 AM

All of which makes me glad I live 2,000 miles away... As noted previously, Gov. Pataki has called a special session of the legislature to pass more gun restrictions.

Assembly Speaker Sheldon Silver has proclaimed that Pataki and the state senate are actually in the pocket of the NRA and are not going to go far enough in further restricting gun ownership. Brady Campaign has endorsed Silver's approach.

On the other hand, Republicans are saying that Silver is actually out to derail the special session, loading up the bills with extra stuff in order to generate the appearance of "doing something" about crime.

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Pataki calls special session to vote on gun laws

Posted by David Hardy · 18 December 2005 06:04 PM

NY Governor Pataki has called a special session of the legislature to consider making NY's gun laws even stricter, and to allow the death penalty for cop killers.

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New approach to a newsblog

Posted by David Hardy · 16 December 2005 07:30 AM

One of the readers has pioneered a new approach to newsblogging.

With blogs as with MSM, there is an editorial function -- someone has to decide what gets included, and whether it's treated as headline or minor materials. At News Bump readers take on the latter editorial function -- if a story seems important, click on a button to bump it up. The first news set out is thus the story that readers thought the most important (combined with a function for newness, so a very popular older report does not sit at the head of the list forever). Rankings change about every half hour.

Readers who sign up can also submit news reports, which other readers can then bump up if they are interesting.

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Knife control

Posted by David Hardy · 14 December 2005 11:52 AM

Cam Edwards notes new proposals for big-city knife control. It's hardly a new idea: in the 1850-1880 period, several states passed laws against bowie knives and "Arkansas Toothpicks." [UPDATE: Clayton Cramer emails me that "Actually, the big burst of laws aimed at Bowie knives and Arkansas toothpicks is earlier than 1850. My book Concealed Weapon Laws of the Early Republic examines this in detail. Alabama's law from 1837 prohibited carrying, and imposed a $100 transfer tax. Georgia's 1837 banned sale of Bowie knives and concealable handguns. Tennessee's 1838 law banned carrying and sale of Bowie knives and Arkansas toothpicks. Arkansas's 1838 banned carrying "any pistol, dirk, butcher or large knife." My book examines the manner in which these laws suddenly became popular--there's some strong similarity to the assault weapon panic of 1989-90, and for the same reason--popular press started making a big deal about how deadly and evil they were--and demand skyrocketed, because LOTS of people now wanted one."]

Continue reading "Knife control"

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San Fran struggles to cope with gun ban

Posted by David Hardy · 10 December 2005 10:45 AM

In the San Fran Chron Watch there appears a humorous piece on the gun ban.

"Gang members were lined up for several blocks outside of a San Francisco police station in order to turn over their guns. "It's the right thing to do, yo," said a gangbanger known as Fizzle. "... I stole this .45 two years ago, and now I have to give it to the police. It just ain't right.""

[Thanks to Dan Gifford]

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Illustration of responsibility of firearm owners

Posted by David Hardy · 7 December 2005 08:17 AM

A while back, I mention Clayton Cramer's discussion of how gun owners were likely to be too responsible rather than too triggerhappy (in the context of a CCW permit holder who had a shot at the Tacoma Mall shooter but was reluctant to take it).

This morning's Arizona Daily Star has a local story along the same lines, showing what must approach superhuman restraint.

A fellow stole a shotgun from Frontier Guns, ran out with it and dove into his car. The store owner pursued, pistol in hand. The thief drove the car into him and the owner wound up on the hood, holding the gun pointing at him thru the windshield as the car pulled into traffic. Eventually he got dumped into the street, and police tracked down the thief.

"The armed owner of the gun shop chased after him, but Lange tried to run down the store owner with his car, he said. The store owner got on the hood, holding on with one hand and pointing a gun through the windshield with the other, witnesses told police.

Lange swerved onto East Grant Road, dropping the owner into the street and pulling out in front of traffic, witnesses told police. The owner, face bloodied, walked back to his shop as Lange sped off.
Police said one of the witnesses followed Lange.

Officers caught up with Lange at his home a few blocks away ...."

I dunno if the shop owner was loathe to fire because he didn't want to kill a guy over a matter of property theft, or because the store is on a heavily-travelled street where misses and ricochets would be especially dangerous. Whatever it was, holding fire while the guy tries to run you over and then exits with you on the hood does seem like truly exceptional restraint. Note also that a witness -- probably a gun store customer -- reacted, not with a Rambo routine, but by following the guy's car until he stopped, and then bringing in the police.

Permalink · contemporary issues · Comments (3)

Police agencies questioning "always armed" policy

Posted by David Hardy · 6 December 2005 09:55 PM

AP is reporting that some LE agencies are questioning the standard "always armed" policy -- because their officers have an unfortunate tendency to shoot armed, off duty, officers who are trying to prevent crime.

"The International Association of Chiefs of Police has called ``always on duty'' policies a costly tradition. The group, which has more than 20,000 members, recommends that off-duty officers who witness a crime call for assistance rather than pulling a weapon."

At least the International is consistent, given its general attitudes toward gun ownership. But you'd think the solution would be reducing the chances of mistaken shooting of an armed person trying to prevent crime, rather than disarming the officers.

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Petition to amend gun ban in Federal parks

Posted by David Hardy · 4 December 2005 03:03 PM

The Virginia Citizens Defense League has petitioned Dept of Interior to amend its regulations relating to National Parks, which presently forbid close to all carrying of a weapon. Since it's a bit hard to deal with a grizzly barehanded, there is quite a good case to be made. As the petition notes, the Park Service itself has a publication on the ten most dangerous national parks...
(If you follow the links, you can see that the re-enactment of the Siege of Yorktown had to be moved off the battlefield, which is a park, because ... uh .... the ban applies to muskets and bayonets, too).

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TSA allows some sharp objects

Posted by David Hardy · 30 November 2005 01:15 PM

CNN reports that TSA will Friday announce a rule allowing scissors up to 4" long, and screwdrivers up to 7" long, on airplanes. "

Now if they'd only accept my rule for preventing hijackings:

1. Pilots get .45s.
2. Passengers are encouraged to carry knives. BIG knives.

Any hijacker will be stuck in a plane with 100+ p.o.ed travellers whipping out bowies and K-bars, and a flight crew just waiting for the door to open.

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Alito's questionaire and gun cases

Posted by David Hardy · 30 November 2005 11:17 AM

Orin Kerr notes that Judge Alito has submitted a 64 page answer to the customary Senate questions, so I read it for anything relating to firearms law. The only portion I could find was where he described his role in briefing cases with the Solicitor General:

"Dickerson v. New Banner Institute, 460 U.S. 103 (1983). The question presented in this case was whether firearms disabilities imposed by provisions of the Gun Control Act apply to a person who was convicted of a state offense punishable by imprisonment for a term exceeding one year but whose conviction was expunged. On behalf of the Director of the Bureau of Alcohol, Tobacco and Firearms, we argued that statutorily prescribed disabilities are not automatically removed by expunction of the conviction under a state statute. The text of the statute applies to all persons “convicted” of certain crimes, regardless of whether the conviction is subsequently expunged. Other provisions of the Act and related federal statutes reinforce this conclusion and show that Congress carefully distinguished between present status and the occurrence of past events.
The Supreme Court agreed in an opinion by Justice Blackmun. The Court accepted our argument that an expunction under state law does not alter the effect of a disabling conviction for purposes of the federal statute, finding that the interpretation was supported not just by statutory text but by the purpose of Title IV, which was intended to curb crime by keeping firearms out of the hands of those not legally entitled to possess them."

Dickinson was overriden by the 1986 Firearm Owners' Protection Act.

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At the very least, Alito has the right enemies

Posted by David Hardy · 29 November 2005 10:47 AM

Over at the Brady Center, the top three stories are about Judge Alito, or "Machine Gun Sammy," as they've taken to calling him.

Alito is also front-page news at the Joyce-Foundation-funded Violence Policy Center, where three of their four lead stories concern him (the fourth praises the San Francisco gun ban).

The Brady Center conveniently posts, at top right margin, a box where you can email your Senators. Just be sure to personalize the message!

I can see the reason for their upset. If a narrow view is taken of Commerce Clause powers, along the lines of Alito's dissent in the machinegun case, you never get to the second amendment. You don't have to get that far -- Congress never had the power to enact the law in the first place. That'd (probably) leave Congress with the power to regulate true interstate commerce. Require FFLs for interstate purchases, require FFLs to keep records, etc. But beyond that (viz., everything the antigun movement has sought since 1968, and all of their "boutique bans" on assault weapons, etc.), Congressional power is at the very least in serious question. So from their standpoint, Alito is a lost vote in almost all gun cases (replacing O'Connor, who was only a lost vote if the case involved a major conflict with State responsibilities).

And if a Court does reach the right to arms issue: in my experience, a jurist who is comfortable with guns is open to an individual rights view, and an open mind is all we need. The ones who are closed-minding are those who, at an emotional level, are frightened by private ownership of firearms. If Alito sees nothing disturbing about private ownership of full autos, it's probably safe to say he falls under the open-minded classification. So a probable outcome of him on the Court would be a vote both for narrow commerce clause powers and for broad right to arms understandings.

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Waco

Posted by David Hardy · 26 November 2005 09:35 PM

There have been a few comments about the Waco tragedy, in 1993. Just thought I'd mention that I have a raher large webpage on the subject, based on three years of Freedom of Information Act suits to get information relating to it.

Just one sample: the raid and initial shootout were supposedly justified because Koresh was a reclusive paranoid who never left the building and thus could not be arrested without a major invasion.

I got the ATF reports that showed what the ATF undercover agents in the "undercover house" (across the street from the Davidian place) had done on February 19, nine days before the raid.

They went shooting.

With David Koresh.

He carried the ammo, they had the guns (until they loaned him a .38 Super). Then they went back home to plan the raid on the fellow who never left the building.

I am not kidding....

[UPDATES:

1. I haven't had time to update the page in a year or so. The audio .ra files aren't working, and when I have a chance I'll figure out why. I also want to insert larger video files (the page was created years back, when EVERYONE had dial-up, and a 500 meg file was enormous).

2. On prying for the Feb. 28 videos ... after literally years of courtroom work, here are the results from the ground-based cameras:

a. Camera on tripod near the "radio van." Finally got it, but it shows nothing but a blurry image of a building maybe 300 yards away.

b. Camera mounted on telephone pole: ATF claims they can't find the tape.

c. Camera in undercover house: ATF claims it failed for mysterious reasons. Officially, it kept ejecting the tapes (apparently it was a videocam linked to a VCR) rather than recording, due to radio interference from radio van. Problems: (i) VCR remotes work on infrared, not radio signals; (ii) ATF tried to duplicate the event with potent radio signals and couldn't do so. My guess is that someone just removed the tape and "vanished" it.

d. On the side: still camera carried by ATF's PR officer. She claims she put it on a table in raid HQ and it vanished, together with the film. Gad -- a room full of law enforcement, and a thief sneaks in and takes it? Pretty brazen.... Assuming that the story is true, it'd be apparent that ATF realized, during and right after the raid, that evidence had better start disappearing, period.

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Move to get more mental health records in Brady database

Posted by David Hardy · 26 November 2005 05:29 PM

From AP:

"Not one of their names was in a database that licensed gun dealers must check before making sales — even though federal law prohibits the mentally ill from purchasing guns.

Most states have privacy laws barring such information from being shared with law enforcement. Legislation pending in Congress that has bipartisan support seeks to get more of the disqualifying records in the database.

In addition to mandating the sharing of mental health records, the legislation would require that states improve their computerized record-keeping for felony records and domestic violence restraining orders and convictions, which also are supposed to bar people from purchasing guns.

Similar measures, opposed by some advocates for the mentally ill and gun-rights groups, did not pass Congress in 2002 and 2004."

I was at a planning session (made public by the Federal Advisory Committee Act) for the Brady Act database back in the mid-1990s. The planning group even then was seeking to consolidate mental health records (they figured the VA records would be easy to get, state records much harder), domestic orders, renunciations of citizenship (small number of files, kept by State Department), etc. I found the thing rather appalling ... as was the general disinterest in the matter by "privacy" advocates. I'd have expected even antigunners among the last to alert to the fact that the Brady files cover all Americans, whether they own guns or not.

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Move to sorta-repeal DC gun ban dies

Posted by David Hardy · 22 November 2005 01:10 PM

The WashPo reports that the proposed limit on the DC gun ban (an appropriations rider) has been deleted from the bill as enacted.

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Amusing note on definitions

Posted by David Hardy · 21 November 2005 11:22 AM

I've seen this in some state laws, but only now realized it was the case in Arizona... the legislature has managed to define "firearm" out of existence!

Arizona Revised Statutes, title 13, chapter 31, contains all the firearm law restrictions, including prohibited possessors, concealed carry, etc.. Section 3101 is the definition section, which applies to the entire chapter. Here are the two key definitions:

"3. "Explosive" means any dynamite, nitroglycerine, black powder or other similar explosive material including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes."

"4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive."

So firearm is anything that expels a project by explosive, but explosive does not include ammunition or gunpowder.....

{update: note that key is that gunpowder and ammo are not explosives. So a gun that shoots those is not legally a "firearm." A spud gun probably wouldn't qualify, either, unless the hair spray or whatever used to power it is considered an "explosive." A good argument could be made that, even tho it will detonate, it isn't, since the statute lists nitro, blasting powder, plastic explosive and other "similar" explosives, and hair spray vapor has little similarity there.

I've seen another definition of "firearm" somewhere in statutes -- that which expels a projectile by action of an expanding gas. Now, that would encompass spud guns, not to mention BB guns and airsoft guns. Maybe cork guns. But it's not the definition used here.]

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Al-Zaraqawi may be spending Thanskgiving all over Mosul

Posted by David Hardy · 20 November 2005 03:14 PM

There are reports that the terrorist leader was among the eight leaders cornered in a house who blew themselves up.

Never count a man dead until you've seen the body, and even then remember you may be mistaken. I suspect the present data isn't much more than (a) we were tipped he'd be there and (b) eight people there blew themselves up.

On the other hand, word that eight of the leadership disassembled themselves is cheering. One top dog can be replaced a lot easier than eight of the leadership.

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American Prospect on Alito

Posted by David Hardy · 16 November 2005 04:36 PM

An article in American Prospect attacks Alito's dissent in the machinegun case. Not a particularly good attack, I think. With regard to the Lopez precedent, its argument is little more than other judges rejected the argument, and the medical marihuana case (decided years after Alito wrote) suggests that the Court didn't in 2005 view Lopez as that broad.

I do find one segment interesting: "In early August of this year, one month before the Roberts confirmation hearing, Judiciary Committee Chair Specter derided the "reinvigoration of federalism" in Lopez and other cases as "the hallmark agenda of the judicial activism of the Rehnquist Court" and a mere cover for "usurping Congress' authority."" (1) That says a lot for the Senate's respect for the Constitution when it conflicts with desired results; (2) it becomes rather obvious that even the view that the 'Constitution is what the courts say it is' is discarded the minute the courts say something that leads to an undesired policy result. In short, the question of constitutionality is increasingly becoming a question of how Congress can get the desired result of unlimited legislative power. (Except, of course, when the legislation in question involves abortion).

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SF gun ban brief

Posted by David Hardy · 16 November 2005 09:07 AM

Clayton Cramer has a post on the San Fran gun ban, with a link to a brief filed by Chuck Michel and Don Kates in the matter (caveat: large pdf file). The brief appends a copy of the referendum.... and brother, is it one strange piece of legislation.

1. It bans all transfer of firearms and ammunition (rifle and pistol alike) within the city. This would include transfers by will, etc., so as rifle and shotgun owners die off, their firearms become contraband.

2. It bans handgun possession by residents of the city. A nonresident may still possess a handgun while in town (provided other CA requirements are met).

3. The ban on possession by residents applies to police officers, except when they are actually performing official duties.

4. The ban applies to pretty much everyone else, at all times. Which means it may be difficult to try a case involving a handgun. There is no exemption for court clerks to possess a handgun as an exhibit in a case, or for prosecutors or defense attorneys to pick one up during the trial. (On the other hand, there's probably no such exemption in the drug laws, but attorneys, judges, and jurors regularly "possess" heroin, meth and everything else in the course of a trial).

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Notes on Alito and gun control

Posted by David Hardy · 10 November 2005 10:36 AM

Judge Alito's thesis advisor found a copy of his 1972 thesis. Not that that's terribly important (it was on the work of the Italian Supreme Court), but he told the Daily Princetonian:

""He is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I," Murphy said in an earlier email message.

"We, however, agree on other important issues, such as finding no constitutional barrier to bans on late term abortions and requiring spousal and parental notification of impending abortions."

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San Fran gun ban passes

Posted by David Hardy · 9 November 2005 08:01 AM

Word is that the SF referendum on a city gun ban passed yesterday. It reportedly outlaws and authorizes confiscation of all handguns, and prohibits future transfers of rifles and shotguns. From what I've heard, it's in violation of the State pre-emption laws. NRA has announced it'll sue (see extended entry below).

Hint to anyone proposing a pre-emption statute, or want to put teeth in it: insert a provision for attorneys' fees and perhaps damages. Otherwise, a city can and will go ahead and enact one anyway, and figure if anyone objects to the illegality they've have to lay out thousands in legal fees to do anything about it.

[UPDATE: Just received an email from Don Kates, stating that he and Chuck Michel have filed suit challenging it as a violation of the state pre-emption laws.]

Continue reading "San Fran gun ban passes"

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Another Brady Center press release on Alito

Posted by David Hardy · 7 November 2005 11:59 AM

Brady Center has issued another one. This is pretty good. They excoriate Alito for not showing more deference to Congress (i.e., not figuring it has the Constitutional power to do something -- because it wants to do something). It gets upset that Alito's dissent asks the the government come forth with "empirical evidence" that the action forbidden is actually within Congress's power over interstate commerce. And protests why should this be required, "beyond the substantial findings already made by Congress" -- nevermind that the 1986 amendment which added 18 USC 922(o) had no relevant findings attached.

It calls it an "example of judicial activism at its worst." To which the best response is Hinderaker's article below. It is NOT judicial activitism to recognize what is expressly in the Constitution.

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New pro-Alito blog

Posted by David Hardy · 7 November 2005 09:01 AM

{via the Volokh Conspiracy} There's a new, pro-Alito blog online. Quite a change from the Harriet Miers days of, oh, a month ago.

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Use of expanding projectiles in war on terror

Posted by David Hardy · 6 November 2005 06:09 PM

Via Budd Schroeder... an interesting webpage on legal status of expanding projectiles against terrorists. The point is made that the Hague Convention isn't applicable to a situation such as this, where the fight is not against enemy soldiers serving a nation-state (let along a signatory to the treaty), and thus there's nothing illicit about using match-grade hollow-points.

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Hinderaker and Mirengoff on Alito nomination

Posted by David Hardy · 6 November 2005 01:16 PM

The WaPo has an article by bloggers John Hinderaker and Paul Mirengoff on the Alito nomination. A historical point:

"Focusing on what it means to be a "conservative" in this context highlights a basic asymmetry between how the left and the right look at the Supreme Court. Until the past few decades, nominations to the court were generally noncontroversial. The court was not viewed as a political power center, and most people assumed that a judge would affect their lives only if they happened to have a case before him. Thus, as recently as 1962, Justice Byron White was confirmed just 11 days after being nominated by President John F. Kennedy, by a unanimous voice vote in the Senate following a Judiciary Committee hearing that lasted a single morning.
What happened to turn Supreme Court nominations into mini-Armageddons? Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority. ....

When conservatives say that we want "conservative" judges, or "strict constructionist" or "constitutionalist" judges, what we mean is pretty simple: We want judges who won't make stuff up. We want judges who won't view the Constitution as a mirror in which, at every turn, they see reflected their own opinions and policy preferences.....

The corollary of the proposition that judges shouldn't make up stuff that isn't in the Constitution or laws is that judges also don't have the discretion to ignore language that is in the Constitution or the laws. Thus, the interstate commerce clause must be recognized as a limitation on Congress's power to regulate the economy, as Judge Roberts noted in the case of the "hapless toad." The Fourteenth Amendment's guarantee of equal protection of the laws can't be ignored every time a public university wants to prefer some applicants over others, based on race. And the Second Amendment's guarantee of the right to keep and bear arms can't be treated as if it got repealed somewhere along the way.
It is in connection with such issues that liberals often argue that conservative judges are really just as "activist" as liberal judges, if not more so. This is based on the observation that conservatives sometimes hold statutes unconstitutional because, for example, they exceed the constitutional limits on federal power. But again, liberals overlook a fundamental asymmetry: It is activist to import something into the Constitution that is not written there, based on one's own policy preferences. It is not activist to apply and enforce the Constitution as it is written. That, on the contrary, is the duty of every state and federal judge."

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Waiting periods for nonlethal defense tools?

Posted by David Hardy · 4 November 2005 05:27 PM

Miami-Dade commissioners have approved a rule imposing a five-day waiting period for stun gun purchases.

Exactly why is anyone's guess....

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Uodate on Parker case

Posted by David Hardy · 3 November 2005 04:07 PM

Word from Bob Levy, attorney for appellants in Parker (which challenges the DC gun law) is that the DC Circuit denied the DC gov't's motion to summarily affirm (the dismissal below) on standing grounds, and ordered that the issue be addressed in briefs. (As he notes, they're not out of the woods yet on standing, but at least they've survived the first attack). Wording of order follows.

Continue reading "Uodate on Parker case"

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Law prof's caution on Alito

Posted by David Hardy · 3 November 2005 08:55 AM

A pro-Second Amendment law prof emailed me:

Don't bet the farm.

Jodge Alito would give Congress the green light, under the commerce clause to regulate - BAN - firearms "if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate
commerce."

There has never been any requirement that Congress make "findings" that are true or even supported by evidence. And no court will second-guess Congress on the issue of "substantial[ness]" of the effect.

This is a GIANT loophole in the record of a Judge from anti-gun New Jersey who has never spoken directly on the issue of firearms or the Second Amendment.

His record provides no positive basis to suppose he's pro-Second Amendment. He might be, he might not.

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NRA on a roll in Florida

Posted by David Hardy · 3 November 2005 08:36 AM

An article in the Daytona Beach-Journal, with the usual slant.

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Thoughts on Alito nomination

Posted by David Hardy · 1 November 2005 11:35 AM

I won't bother to link a bunch of Brady Campaign press reports, since it's no more than the media picking up their press release, linked below. But they appear to be taking the lead on the Demo counterattack. That in turn ducks the question of qualifications (good choice) and goes direct to "this guy, if on the Court, will vote against legislation we like or maybe for legislation we don't." In short, the same considerations you'd have if he were running for Congress. A few thoughts:

1) The nastiness of fighting over Supreme Court nominations has escalated lately, I think largely because the judicial role is increasingly seen in this light. (After 30 years experience, I would be the last to say judges are impartial decisionmakers unswayed by their own values. BUT I would expect the Supreme Court to try harder than most). It's not so long ago that we had the younger Justice Harlan striking down a prosecution of a guy for wearing a "Fuck the Draft" t-shirt, when it's safe to say that Harlan found the shirt appalling. Today ... look at the campaign finance decisions. It's hard to say that they were based upon anything much more than "campaign reform is a good idea."

2) The split between originalists and positivists and the-law-is-what-I-want-it-to-be types is becoming more and more sharp. It's become so different that a while back I read a law prof. arguing, and rather cogently, that the most one can expect of a judge is that he is consistent to his approach. That is, if Scalia is a textualist, and Thomas an originalist (which are close but not identical), they will not depart from that analytical mode in a case because they want a different result.

3) In fighting on this ground, though, that will be brought out from under the rock. The bottom line becomes "to hell with the Constitution, and principled reading of it -- we want a guy who will vote to uphold certain things, and vote our way." By "principled reading" I do not mean "agrees with me." I mean simply "honestly tries to figure out what it means, without resort to whether he likes the result." I tend to think most of the American people are less cynical than I on whether this happens, and that almost all would agree it SHOULD happen. Even if they get POed over a result now and then. And they probably would be disturbed to hear arguments over an "evolving constitution" and suchlike, and feel great security in a person judge who believes that his job is to find meaning in the original. (And who can respond: if you don't like the original meaning, it is within your power to change it, and then I'll follow that).

4) The confirmation battle will be fought out between, by all accounts, a first-rate legal mind, opposed by Ted Kennedy, Diana Feinstein, etc.. I think I know where I'll put my money.

5) In short, the Demos are attacking the high ground, with indifferent weaponry wielded by their worst troops. Reminds me of the last ten or twenty years. And to think this is a party that once controlled both Houses and the White House for decades (or at least long periods of time!

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A few quick reactions to Alito

Posted by David Hardy · 31 October 2005 03:18 PM

1. I was just listening to NPR, and they interviewed a number of judges who sat with him on the 3d CIrcuit, and made no bones about their being liberal and he conservative, but all agreed that he was very intellectually honest, very intelligent, and great to work with. One commentator was in opposition, and about all he could argue was that Demos should make this a contest, not over qualifications, but over his politics/philosophy, over "do we want the Court to move to the right." The rejoinder was simple: the Court isn't supposed to be a policy-setting, a political, institution. Unless you can argue he is results-oriented, that argument doesn't hold much water.

[UPDATE: The Demos are following that playbook. "[Ted] Kennedy complained the nomination of Samuel Alito would push the court "dangerously to the right"." "Senator Kerry questioned the President's motives in a statement, asking "Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?""]

2. Got a suggestion from Matt Margolis that Republicans among us might send a donation to GOP with a note thanking them for having given up on Meirs. here's a webpage to do that. And here's one explaining the idea.

3. Publicola would have preferred Kozinski -- as would I.

4. The Brady Campaign is already out with a press release, calling him "Machine gun Sammy," over his dissent arguing 922(o) is unconstitutional. ""Judge Alito's ludicrous machine gun decision is bad enough. But it also indicates that a Justice Alito would attempt to prevent Congress from passing other laws to protect Americans from gun violence," said Michael D. Barnes, president of the Brady Campaign. "If Judge Alito had his way, the federal machine gun ban would have been struck down as unconstitutional, and the private possession of these weapons would have become legal."" I like the guy even more, now!
[Yeah, I know, possession isn't illegal even after 922(o), but this is Brady Campaign pitching it to the media, so the first doesn't care about what's true and, come to think of it, neither does the second).

5. I suspect the Meirs matter has really awakened the GOP to blogging and the internet. I've gotten four or five emails pitching Alito from them already. And I'm not even registered as a Republican!

6. Here's the most comprehensive posting I've seen on the nominee.

Permalink · contemporary issues · Comments (1)

Alito and guns

Posted by David Hardy · 31 October 2005 09:57 AM

Thanks to Bob's tip in comment to the preceding post, I've found Judge Alito's dissent in U.S. v. Rybar, 103 F.3d 273 (3d Cir. 1996). Defendant was convicted of violating 18 USC 922(o), by possessing post-1986 machineguns (in this case, MGs not lawfully owned in 1986). Majority upholds conviction, rejecting both commerce clause and 2d Amendment arguments.

Alito dissents, focusing on the commerce clause, and beginning "Was United States v. Lopez, 115 S.Ct. 1624 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power? The statutory provision challenged in this case, the portion of 18 U.S.C. Section(s) 922(o) that generally prohibits the purely intrastate possession ... of a machine gun, is the closest extant relative of the statute struck down in Lopez..." I paste the full dissent into the extended entry.

I'd take this at the very least to mean (1) he has a proper view of the commerce clause, and (2) at least is not hostile to guns.

Pontarelli v. United States Department of Treasury, 285 F.3d 216 (3d Cir. 2002). This is one of the cases arising out of "relief from disabilities." GCA 68 allowed persons barred from gun ownership to apply to ATF for relief, thus giving a relief valve for old or minor convictions, etc. Congress put a rider on ATF's budget forbidding it to expend money for this. SInce there was also a provision allowing appeal to court for a denial, and for an evidentiary hearing, question arose as to whether, when ATF can't give relief, you can appeal to court and prove you should have it. A three judge panel in an earlier case had said yes. In this one, gov't moved for hearing en banc to overrule that. Alito was part of the en banc ruling that did so, and said you can't appeal to court. Opinion is unanimous and notes that almost every court since their earlier ruling had gone the other way.

Other Alito decisions: U.S. v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997) involved a Sixth Amendment question of venue, and Alito's dissent cites Story on the Constitution, British law, and history texts. " Would the framers have thought that prosecuting an American colonist in England on a charge of treason was permissible if Parliament had been able to craft a treason statute in which a verb denoted an action occurring in England? The answer is no. The constitutional venue provisions were meant to put in place important substantive protections against government abuse."

United States v. Dodd, 225 F.3d 340, 225 F.3d 340 (3d Cir. 2000) Alito is part of unanimous ruling that a felon in possession bears the burden of proving a necessity defense. (Felon claimed he picked up gun on street to prevent children taking it, and meant to turn it in).

Continue reading "Alito and guns"

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Alioto said to be the pick

Posted by David Hardy · 31 October 2005 07:23 AM

Word is that the nominee will be Judge Sam Alioto of the Third Circuit.

Over on the Volokh Conspiracy, David Bernstein points out an interesting fact: if he is confirmed (and he certainly sounds qualified) the Court will now have a majority of Roman Catholics (five) and two Jews. With the Catholic majority having been created by a very Protestant president. We've come a ways from the days when JFK had to worry about reassuring people that he wouldn't follow the Pope's commands.

(PS--the revolution is set for Guy Fawkes Day, right after Benedict canonizes the martyr on the steps of the Capitol. I understand he'll then take back 15,000 Marines to reinforce his Swiss Guard, and so if any future dictator sneers "The Pope? How many division has the Pope?" he can reply "One more than the Premier has plenary indulgences.")

Continue reading "Alioto said to be the pick"

Permalink · contemporary issues

FEMA retracts gun ban

Posted by David Hardy · 29 October 2005 02:39 PM

Here's the press release.

Permalink · contemporary issues

Kozinski! Kozinski!

Posted by David Hardy · 29 October 2005 02:16 PM

Welcome, Instavalanch! My suggestion as to what to do is at the very end of this posting. I suggest emailing the White House at [email protected] with a message title of "Please nominate Judge Kozinski." Odds are that no one reads the thousands of emails, but they probably report numbers of emails on significant themes. The comment in Washington was that, in a Congressional office, a dozen letters on one theme is an avalache, because so few people write. If the White House gets a few hundred emails asking the same thing, it is likely to be noticed. Anyway, back to WHY you would want Judge Kozinski on the Court:

Judge Alex Kozinski of the 9th Circus, I mean Circuit, has been getting a lot of favorable blog press in the last few days. You can count the pro-Second Amendment circuit judges in this county on one hand, and he's definitely there. Here's Prof. Glenn Reynolds on the idea, and here's Prof. Tom Smith.

Qualified? If there was such a thing as overqualified for the post, he'd be it. Emigrates from Romania at age 12, still speaks with an accent, but graduated #1 from UCLA law school. In 1985, became the youngest federal appeals judge in this century. Twenty years in that post. An intellect praised by academics from far left to far right.

Here's what I can find of Kozinski's firearms jurisprudence:

Major cases:

Silviera v. Lockyer, 312 F.3d 1052 (9th Cir. 2003). Majority holds second amendment is not an individual right. Motion for rehearing en banc denied. Kozinski writes strong dissent (the more important parts are quoted by Prof. Reynolds, above). The panel opinion complains that in a prior case, "Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary that may in no way be dismissed as dicta."

United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003). Kozinski writes panel opinion. Defendant had built a homemade machinegun, and was charged with violating 922(o) (prohibiting possessing a full auto not made before 1986). Kozinski holds that, in this context (gun built at home), 922(o) exceeds Congressional powers to regulate interstate commerce. This is the only federal case I can think of that holds a regulation of gun making beyond the commerce power (I think it and Lopez are the only two that hold any gun law beyond federal power).

State of Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001). Kozinski writes the opinion holding that Idaho authorities may prosecute FBI sniper Lon Horiuchi for shooting Vickie Weaver during the Ruby Ridge affair. Government argued that the Supremacy Clause bars state prosecution of federal actors. Opinion holds that government has not established that her shooting was objectively reasonable, and that absent that, Supremacy Clause is no protection.

Lesser cases:

United States v. O'Mara, 963 F.2d 1288 (9th Cir. 1992). Defendant convicted of having an unlicensed full-auto Sten gun. Defendant argued he didn't know it was full auto. Issue was whether a defendant has to know a machinegun is a machinegun, or just has to know it is a gun, and court holds he only has to know it is a gun. Kozinski concurs, saying that that is indeed the way 9th Cir. caselaw holds, so he must join, but adding that he thinks the 9th Cir. position is wrong. (He was later vindicated when the Supreme Court took his position in another case).

US v. Foster (1997). Kozinski writes an en-banc majority opinion which construes a sentencing enhancement for carrying a firearm during a drug offense. Defendant was driving a pickup, and there was a gun in a pouch in the bed of it, covered by a snap-down cover. Kozinski concludes for that majority that this was not "carrying" -- the term implies not only conveying a gun, but having it accessible for use. Three judges dissent.

US v. Moore (1997): Kozinski sides with majority in upholding conviction in a "straw man" sale -- a real one, not a set-up. Defendant was a juvenile criminal's mother -- she wasn't the straw buyer, but provided the money, and was charged for aiding and abetting. Dissenters argue that ATF has recognized that a parent may buy for a child.

United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987). Defendant was first convicted of illegal possession of a machinegun in state court, a felony. Four years later the state court expunged the conviction and reduced it to a misdemeanor (I assume a quirk of California law). Later, bought four rifles, telling the dealer of this, and the dealer told him it was OK because it'd been reduced to a misdemeanor. He was convicted of being a felon in possession. Majority reverses, based on entrapment by estoppel (a rare-allowed defense where a person is misled into violating the law via an act or advise of a government official). Kozinski dissents, pointed out that a firearms dealer, despite his license, is not a federal official. I'd count the majority opinion as one more reason we call it the Ninth Circus. Kozinski's dissent notes that Federal law (pre-FOPA) is at loggerheads with state law... state law allows reduction to a misdemeanor, federal law refused to recognize that. "Again and again we see defendants who have been given solemn assurances by those they justifiably trust -- state judges, prosecutors, defense counsel -- that they may now enjoy all rights of citizenship, including that of owning a gun, yet find that they have committed a federal crime when they exercise that supposed right." He suggests that Congress ought to remedy it, adding "This is not the first case of this kind where I had to wonder whether the prosecution served any purpose other than to pad the prosecutor's batting average."

A possible suggestion. The White House has an email: [email protected] . I'd assume somebody counts the number of emails on a given subject and reports that. If we all sent email entitled, say "please nominate Judge Kozinski," it might just get someone's attention. They may be a bit jumpy about the internet and blogs just now (grin).

Continue reading "Kozinski! Kozinski!"

Permalink · contemporary issues

Dave K's take on two potential nominees

Posted by David Hardy · 29 October 2005 09:14 AM

Over at the Volokh Conspiracy, Dave Kopel has posted his research on a couple of potential Supreme Court nominees, Judges Luttig and Alito. Neither has written an opinion mentioning the Second Amendment (which is not unusual), but a couple of firearm cases suggest that they at least take the constitution seriously and are not hostile to the amendment.

Permalink · contemporary issues

Federal official charged with assault with a dead weapon

Posted by David Hardy · 27 October 2005 06:05 PM

The Orlando Sentinel reports that the Tampa head of Immigrations and Customs Enforcement has been arrested. "Long regarded as a rising star and a by-the-book administrator, Figueroa took command of ICE operations in Central Florida six weeks ago after serving in top posts in Washington, Miami and San Juan."

He apparently rose to the wrong occasion, and was busted for masturbating before a teenager. The teen aptly described it as disgusting, although one might wonder why she took ten minutes to report it. The official does sound like a strange duck ... "Assigned to Miami in the early 1980s, the former New Yorker from the South Bronx arrived in South Florida dressed like an extra for Miami Vice, a popular police show. "We had to convince him that it was only a TV show," a retired Customs agent told the newspaper. "He didn't have to look like Crockett and Tubbs all the time.""

Here's another link, mentioning the girl was 16 years old.

Permalink · contemporary issues

Nevada CCWs and background checks

Posted by David Hardy · 27 October 2005 04:15 PM

The Nevada situation (where ATFE has held that the CCW permits do not allow holders to avoid the background check) seems to be getting even murkier. The Pahrump Valley Times reports that "Firearms dealers received a last minute notice issued by The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) less than a week before the deadline. The change does not sit well with individual permit holders - who were not notified in advance." The reported basis is that "In a report published in the Las Vegas Review-Journal on Saturday, an audit found that sheriff's departments in Nevada were not performing federally required annual updates on permit holders. Frank Adams, executive director of the Nevada Sheriffs and Chiefs Association, said law enforcement lacks the staff to perform the updates. However, Marshall points out that Nye County has not done annual updates because they are not required under Nevada Revised Statute 202.366, which deals with issuance or denial of Nevada's concealed firearm permit."

What I can't figure out is how this ties into the background check question. 18 USC 922 requires the checks, but has this exception:

"(3) Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if--
(A)(i) such other person has presented to the licensee a permit that--
(I) allows such other person to possess or acquire a firearm; and
(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and (ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law"

I don't see anything in there requiring that the permit be reviewed annually. And as far as its length goes, the requirement isn't that the permit be no more than five years, it's that the transaction not take place more than five years after the permit was issued.

Permalink · contemporary issues

Miers gone; next pick?

Posted by David Hardy · 27 October 2005 11:15 AM

Gene Volokh has an excellent posting on who the President should nominate next, and why. Kozinski and van Alstyne are quite pro-Second Amendment, by the way.

I'd assume the current administration would find van Alstyne too generally liberal for their tastes, although his views are, I think, thoroughly principled and rational. He calls them as he sees them, and not along partisan lines. Kozinski would be just great, altho his libertarian streak may also turn off the decisionmakers. As the good Prof. notes, any would be great additions to the Court, which cannot be said of a certain prior nominee.

Oh, please, not Gonzales! Not that I have much against him, but I hate to see someone making the same mistake twice. I don't care how much the Prez knows and likes a person, he should be able to see that the Court requires someone with serious capabilities -- it's not just another political appointment.

Permalink · contemporary issues

FLA bill introduced regarding gun confiscations during emergency

Posted by David Hardy · 26 October 2005 10:52 AM

This in from United Sportsmen of Florida:

FOR IMMEDIATE RELEASE Contact: Bill Johnson
October 25, 2005 (321) 984-4848

REPRESENTATIVE MITCH NEEDELMAN FILES LEGISLATION TO PRESERVE CITIZENS’ RIGHTS DURING EMERGENCIES

TALLAHASSEE - Representative Mitch Needelman (R-Melbourne) today announced the filing House Bill (HB) 285 to preserve the right of citizens to lawfully possess weapons during an officially declared state of emergency.

“Recent events in the New Orleans area during the aftermath of Hurricane Katrina demonstrate that citizens’ right to keep and bear arms are especially important during a state of emergency,” said Representative Needelman, a retired State Law Enforcement Officer. “The very basis for the Second Amendment is to empower citizens with the right to self-protection-and when is self-protection more critical than in a time of disaster?”

HB 285 clarifies the authority of the governor during a declared emergency by asserting that “nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed.”

The New York Times reported in early September that legally possessed firearms were being confiscated from law abiding citizens, quoting the superintendent of police that "only law enforcement are allowed to have weapons." A Louisiana state statute allows the chief law enforcement officer to "regulate possession" of firearms during declared emergencies.

“HB 285 will ensure that the unconstitutional stripping of citizens’ rights does not occur during emergencies in Florida,” said Representative Needelman. “We have an opportunity to reassert the right to bear arms and avoid the clear violation that occurred in Louisiana.”

HB 285 has been filed for consideration in the 2006 Session of the Florida Legislature. The Legislature is slated to convene on March 7, 2006.

Permalink · contemporary issues

CCW permit problems in Nevada

Posted by David Hardy · 24 October 2005 09:55 AM

Vin Suprynowicz's latest column recounts problems with Nevada CCW permits. One of the benefits of such a permit was ability to buy a firearm from a dealer without waiting for, and paying $25 for, a background check. That benefit has been terminated. BATFE terminated it, apparently, because (1) some sheriffs were allegedly issuing permits without running a background check (I say allegedly because they could not cite a case of this happening) and (2) the permits last five years, so the agency was concerned a person could become a prohibited buyer and still have the permit.

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More on Meirs

Posted by David Hardy · 21 October 2005 03:16 PM

Over at the Volokh Conspiracy, Todd Zywicki has some insights. To sum it up:

The conservative side split reflects a certain split between electoral-oriented conservatives (the religious right, etc.) which is content with a Justice they figure will vote their way, and the non-electoral conservatives (Federalist Society, etc.) who see legal change as a long-term change in ideas, and thus favor judges who have won their spurs, intellectually speaking, in conservative legal thinking. For the former is -- if it works, you get the 5-4 you need, don't complain. Besides, someone with well-established conservative credentials is going to catch flak for them. For the latter is --a person who can change patterns of legal thinking (on the Court and elsewhere) is more valuable than one more vote, and one without an established legal philosphy is more apt to shift leftward later in their career.

Another insight: under a bipartisan agreement worked out, Judiciary Committee cannot refuse to report out the nomination. It goes to the Senate floor no matter what. On the other hand, a negative vote and recommendation against (or even a tie and no recommendation) will shrink odds of confirmation massively.

A third: with a nominee like Roberts, little things tended to be ignored. But with one lacking many of his attributes, little things come up. No one would have worried about typos or sloppy wording with Roberts, but they're already pointing out those in her documents. Once a theme gets established in the media (Pres. Ford's clumsiness, Dan Quayle's cluelessness, although he really was clueless), that's all you'll hear (because writing stories on that takes so little effort).

A fourth: people who have heard her speak are worried about the confirmation hearings. And given the situation, her hearings are going to be critical. Previous Justices faced a lot less partisanship. Roberts faced it, but had sufficient credentials to where it didn't all hang on the hearings.

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Meirs, guns and the Second Amendment

Posted by David Hardy · 20 October 2005 01:33 PM

Dan Gifford, a friend and journalist, has been trying to run to ground reports on Harriett Meirs being (a) a gunny and (b) pro-second amendment. So far, not much luck.

(a) No one can confirm that she has held a CCW permit. No one he has been able to talk to in DC can confirm, deny, or seems much to care. The White House public affairs office, in particular, said they had no knowledge on it nor did they know how to find out (maybe ask her?) Sen. Feinstein's office said that she might not be interested in asking about it, since , um, there was this little issue about the Senator herself having a CCW permit...

(b) Indications are that the Second Amendment will not be an issue in the confirmation hearings. He spoke with a Senate Judiciary Committee staffer, and "She says there is nothing on either the original or the revised Committee background questionnaire given Miers that asks anything about firearms nor will there be because it's just not an issue. She said individual senators may ask Miers during the confirmation hearings whether she carries a gun and other related questions, but she has heard nothing about anybody doing so."

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George Mason U's secret is out

Posted by David Hardy · 19 October 2005 08:27 PM

Over at the Volokh conspiracy, Todd Zywicki notes that GMU's secret is now revealed: universities open to conservative scholars can easily poach first-rate talent.

(If I remember correctly, GMU's law school was only accredited in the late 1970s, at a point when my alma mater, Univ. of Arizona, was top-tier. I recently looked at the US News listing of top 100 schools. GMU made it, U of A did not.).

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AZ bar journal article on Sandy Froman

Posted by David Hardy · 18 October 2005 05:07 PM

The cover story of the Arizona Lawyer is devoted to Sandy Froman, NRA's president, and a fellow Tucson attorney. It's quite a favorable article.

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Federal judge strikes down a NY gun show limit

Posted by David Hardy · 18 October 2005 04:11 PM

The Rochester Democrat and Chronicle reports that a District Court has stricken a part of the NY laws regulating gunshows. The statute in question required that "sellers" at a "gun show" perform background checks on purchasers. The statute had several definitions of "gun show," and the judge struck one that said it was any event hosted by organizations devoted to shooting or firearms collecting. (The suit does not affect the alternate definitions, such as a meeting where 20% of exhibitors have guns for sale).

The constitutional problem was that the definition would include gun club meetings and such, and I gather the requirement to do a background on a "buyer" didn't say buyer of a gun. So it would be forbidden for gun clubs to sell anything (including a meal) at a meeting without performing a background check on the buyer.

Those who like sausages and law should not watch the messy process of either being made....

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NPR on guns and Hurricane Katrina

Posted by David Hardy · 18 October 2005 11:57 AM

NPR has a segment on guns and Hurricane Katrina. The webpage links to audio files (RealPlayer & Windows) and to related stories.

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Ky newspaper picks up on the "flea market loophole"

Posted by David Hardy · 17 October 2005 08:42 AM

The media once again goes out with a story that repeats whatever an official wants to tell them. In this case, an ATFE agent saying that (1) lots of criminals buy guns at flea markets (last study I saw indicated a bit over 1% do, the same as with gun shows) and (2) they're driving from NY to Kentucky to get around NY's gun laws.

As to the latter -- if a criminal is willing to drive from NY to KY to get a gun, you probably aren't going to stop him from getting a gun by imposing a few more rules. He can probably find locally stolen ones much more easily. I note the photos of the flea market show rifles, not handguns, which tallies my experience with such.... a fair number of rifles, a few handguns, and those largely old revolvers, H&R .32's, that manner of thing. Which rather rules out a profit even for someone intent on buying a load to sell illegally.

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FEMA reconsidering gun ban

Posted by David Hardy · 15 October 2005 10:47 PM

The Seattle Post-Intelligencer reports that FEMA is reconsidering its gun ban in refugee parks. FEMA had established a mobile home park to house refugees, and announced that no resident would be permitted to possess a firearm. It now states that, in light of NRA and SAF threats to sue, its attorney are reconsidering this.

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TSA opinion on gun seizures at NYC Airports

Posted by David Hardy · 13 October 2005 01:16 PM

There have been some problems with folks transporting firearms to NYC airports and getting arrested for violating the local gun laws (most recently, a bodyguard for Michael Moore was busted). I even heard a report of someone getting nabbed who was merely connecting in NYC -- due to a flight delay, they missed the connection, and for some reason had to reclaim their baggage and check it in a second time.

The Department of Justice has written a letter to Rep. Don Young, stating that their position is that such arrests are barred by the Firearm Owners Protection Act, 18 USC 926A. That section gives legal immunity against state law, provided the person is passing thru the state while going from an area where he can own the gun, to another area where he can own the gun, and (if in a vehicle) the firearm is unloaded and locked in the trunk or other such storage area.

Note that (1) TSA can't give orders to NYPD, so some risk remains, but I suspect almost all of these cases arise from TSA employees calling NYPD; (2) the TSA position might expose, or increase exposure of, NYPD to civil liability if it keeps it up.

Hat tip to Joe Olson and NY State RIfle and Pistol....

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FAQ on Texas CCW permits

Posted by David Hardy · 12 October 2005 03:38 PM

Here's a FAQ on Texas CCW permits.

UPDATE: Rudy sent the following comment, which got blocked because the spam filter was mistakenly set to block "texas" rather than a certain poker game which contains that word. Not to say spam filters are necessary in this operation, but in the hour or so that lapsed between his comment and my resetting the filter, the filter caught 56 spam postings....

I noted in this FAQ a concern not only with Texas law, but that of every state with a shall issue, the cost. They note that an indigent or poor person making less than $7,470 will only be charged $70 dollars for the permit. But Wait, there's more. The cost of fingerprinting is $10. You will also need photographs and pay for a training class. So If you are poor, the cost to you to have the ability to carry concealed is the choice between Food, Clothing, or a permit. What shall I buy this month? It Sounds a little like paying for protection to me.

It makes you appreciate the right to keep and bear arms over the privilege of carrying concealed all the more.

Semper eadem,

Rudy DiGiacinto
Founder &c.
www.virginia1774.org

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More on Miers and guns

Posted by David Hardy · 12 October 2005 09:18 AM

AP is reporting that Harriett Miers owned a .45 revolver, for self-protection, but is not now a Texas CCW permit holder (they can't determine whether she was ever one, since records of present permittees are releasable, but those of past permittees are not).

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California bills and veto

Posted by David Hardy · 11 October 2005 05:00 PM

According to the Brady Campaign, Governor Ahnuld has vetoed a bill to require dealers to keep ammunition under lock and key, and signed two more. One would require dealers to verify age (the age restrictions are apparently unchanged, 18 for rifle and 21 for handgun), and the other authorizes arraignment judges to forbid domestic violence defendants to own arms (i.e., to forbid possession by a person charged with, but not found guilty of, the offense. So much for innocent until proven guilty).

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George Will on Voting Rts Act & why Demos can't win Congressional seats

Posted by David Hardy · 8 October 2005 12:06 PM

George WIll has an interesting column in Newsweek on the subject. Apparently the easiest way to comply with the Voting Rights Act is to cluster your minorities into Congressional districts....that way, presumably, minorities have the best shot at getting elected.

But minorities are also largely Democrats, so the result is also to gerrymander Democrats into a few districts. He cites an example: in the last election, George Bush carried 51% of the popular vote but got a majority vote in 59% of the House districts.

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A new vote count on the Supreme Court?

Posted by David Hardy · 5 October 2005 03:49 PM

Below, I've blogged notes on John Robert's confirmation testimony, in which he displayed a remarkably detailed knowledge of US v. Miller and other Second Amendment caselaw, and Dave Kopel's discovery of a rather pro-RKBA writing by nominee Harriet Miers. [UPDATE: On the Volokh Conspiracy, Orin Kerr posts an email from a former White House attorney, who describes her, inter alia: "She also happens to be a gun-toting evangelical..."] [Another update, from Dan Gifford, who says it comes from a solid DC source: "FYI the White House folks told me she owns a gun and has a concealed carry permit."]

Assuming both are (as they appear to be) votes for an individual right, and that she gets confirmed, they join two sure votes -- Scalia and Thomas. The remaining question is -- is there a fifth vote out there?

As Dave Kopel pointed out to Bob Cottrol and I, as we were enjoying an overpriced lunch recently, the fifth vote might come from an unusual source: Justice Ruth Bader Ginsberg, traditionally ranked in the Court's liberal wing.

Justice Ginsburg dissented in Muscarello v. United States, 118 S.Ct. 1911 (1998) . That case concerned a 5 year sentencing enhancement for carrying a firearm during commission of a drug crime, and majority held that transporting drugs in a car which had a gun in glove compartment was sufficient.

She dissented, and noted with regard to "carry,"

"Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.""

That's rather thin as an indicator, but suggests she thinks the Second Amendment's "bear arms" = "pack your personal iron." Apart from suggesting an individual right, this puts her somewhat beyond some individual rights theorists, who see "keep" as clearly individual, but "bear" as perhaps military only.

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FEMA suspends rescue team because it had an armed escort

Posted by David Hardy · 5 October 2005 09:15 AM

The Arizona Daily Star reports that FEMA has barred the Phoenix Fire Dept search and rescue team from its actitives, because it brought along armed police officers (deputized as federal marshals) while rescuing about 400 people in New Orleans.

"After Hurricane Katrina, firefighters faced deployment to areas plagued by looting and lawlessness. Twice, Phoenix's team was confronted by law enforcement officers who refused to let them pass through their communities and told them to "get out or get shot," Gordon said.

The Phoenix team was told that its help was no longer needed after members of the group were seen embarking on a helicopter flight with a loaded shotgun while helping with the aftermath of Rita."

It says quite a bit about the situation in NO that rescue teams were refused entry by local law enforcement there, let alone threatened with lethal force!

Here's a link to the AP coverage.

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Jim Lindgren on Mier's writing

Posted by David Hardy · 5 October 2005 08:56 AM

On the Volokh Conspiracy, Jim Lindgren has a commentary on the nominee's writing style. "It has been said of Justice Blackmun that he realized his own intellectual limitations, leaving the hard job of drafting his opinions to his clerks, reserving to himself the easier task of substantively cite-checking what his clerks wrote. Unless Miers' writing has improved since 1992 (and it may well have), she might take a leaf from Justice Blackmun's book."

This might be the first nomination where Senators sought the nominee's internal memos from the last ten years, not to find out their position, but to examine them as writing samples.

Lindgren points out Randy Barnett's op-ed opposing the nomination, as a contrast -- the op-ed is much better written than any writing sample we now have from the nominee.

Thoughts: (1) this might be the ultimate stealth nominee, where the Prez. knows how they'll vote, but nobody else does (or at least, can prove it); (2) this might also prove the risk of such nominees, where the one assessing them is himself not exactly long on knowledge of constitutional law, and discussions between the two have focused upon policy matters. (I rather doubt they've had much discussion of when you can aggregate activity under the Commerce Clause or other interesting comtemporary issues).

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Nominee Harriet Miers and the Right to Arms

Posted by David Hardy · 3 October 2005 05:47 PM

This time Dave Kopel, over at the Volokh Conspiracy, gets the scoop.

The nominee wrote a 1992 bar journal article referring to liberties that make for a free society, and listed them: "hose precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs."

BTW, Michelle Malkin is very much down on the new nominee. The American Thinker makes, to my reading, a good response.

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Heads-up for Floridia CCW holders

Posted by David Hardy · 3 October 2005 03:03 PM

An email alert from United Sportsmen of FLA:

Here's your chance to speak your mind on proposed FWC (Florida Wildlife Commission) rule changes. There are numerous proposed regulations upon which you may wish to comment.

One involves your right to concealed carry on Wildlife Management Areas. It is item (10) 68A-15.004

You may access the comments section at the link below:

http://www.myfwc.com/commission/RuleChangeForm.htm

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Calif. judge rules guns at gunshows may be expression & First Amend. protected

Posted by David Hardy · 3 October 2005 02:21 PM

(Just got off plane, which accounts for nonposting for a few days). The San Francisco Chronicle reports that an federal district judge has ruled possessing firearms at gunshows may be expressive conduct protected by the first amendment. (Note this doesn't necessarily mean plaintiff win: the judge is merely ruling that such a right is arguable and cannot be dismissed out of hand). Details of story below...

Continue reading "Calif. judge rules guns at gunshows may be expression & First Amend. protected"

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New Orleans gun suit

Posted by David Hardy · 28 September 2005 01:32 PM

Steve Halbrook, Plaintiffs' attorney, has posted the court's order, and the motion for temporary restraining order.

BTW. Dave Kopel has an excellent article on the gun seizures in Reason Online

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NO lawsuit

Posted by David Hardy · 26 September 2005 08:43 AM

Back from the Geo. Mason Univ. second amendment symposium--will blog my notes later in the day. Steve Halbrook has filed the New Orleans lawsuit, had copies, and described events.

Suit is filed in US District Ct, ED La. (Eastern District is actually sitting in other districts, since its courthouse is still out of action). Plaintiffs are NRA, SAF and an individual named Buell Teel (more may be added). Four counts. (1) violations of RTKBA under La. const., 2d and 14th amendment. (2) dep of property w/o due process. (3) Equal protection (armed security guards allowed to keep arms). (4) Illegal search and seizure.

Teel was proceeding in his boat to carry out rescue missions when he was approached by a La. sheriff's boat occupied by NYPD officers. They levelled M-16s at him, asked if he had guns. He replied yes (I think a couple of deer rifles). They boarded and confiscted them. He asked for a receipt and they refused, saying it was impossible to give them to everyone who was having guns seized. He continued on and had another boat, with local deputies, stop him the same way (guns levelled) with the same demand.

Plaintiffs got an emergency hearing, judge saying serious constitutional issues were involved. City attorney happened to be in building an attended a hasty hearing. CIty's position was that no guns had been taken from anyone and they'd never issued the confiscation order (nevermind that all news services had been reporting on it and confisctaions had been televised). City agreed to a consent order under which it must stop confiscations and will return guns taken.

The last is going to be a bear, since in many cases no receipts were given! Guns were seized by a variety of police agencies many, as in this case, from out of state. How they are going to figure out what gun should be returned to whom is going to be rather difficult!

PS--they're still seeking plaintiffs. See the previous post on how to report for duty as such, or call (888) 414-6333. (They ask that you only respond if you actually had a gun seized, or house searched for arms, or something like that. They've been overwhelmed by calls and emails saying someone saw it on the news, etc.). And if anyone knows the whereabouts of Patricia Konie, the lady who was on the broadcast video getting body-slammed by Calif. State police over a handgun, please email me personally. A friend is trying to reach her.

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FBI Uniform Crime Reports

Posted by David Hardy · 20 September 2005 02:09 PM

The FBI has posted its preliminary Uniform Crime Report for 2004 (Pdf format). A few notes:

In the first full year after expiration of the assault weapons ban, murders declined 3.6%, as did robberies Can't tell much more, since at least for me their interactive map doesn't interact at all.

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Take on Katrina and gun confiscations

Posted by David Hardy · 20 September 2005 02:06 PM

The Detroit News has this take on the issue....

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Virginia1774 webpage

Posted by David Hardy · 18 September 2005 10:22 AM

Virginia 1774, who comments here, has established webpage on VA's history in the revolution and the right to arms. Very interesting material!

Which reminds me, and I'll post on this when I have the time: if you follow the wording changes in the 2nd Amendment, they go like this: the Virginia ratifying convention demands a guarantee of right to arms and the militia. James Madison reverses the order, putting the militia clause first, and makes a number of other changes. The House committee makes changes on those, and more on the floor of the House. But by the time the Senate gets through, it's back to the VA language. Only the reversal of order survives from Madison's composition.

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1st anniversary of AW expiration

Posted by David Hardy · 18 September 2005 10:05 AM

Here's an an article from the Delaware News-Journal on the first anniversary of the expiration of the "assault weapons" ban. As expected, the expiration has had no effect on crime, despite the dire promises of Brady Campaign, VPC, etc., that the streets would be flooded with deadly weapons.

The paper tracked down Sarah Brady, whose response to the non-problem was "Thank goodness we haven't seen any huge increase [in shootings]. That doesn't mean there isn't one around the corner."

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Thought for the day

Posted by David Hardy · 17 September 2005 10:47 AM

An author (I forget who) remarked that European countries define themselves in terms of ethnicity or culture, whereas Americans define themselves by a Constitution. I asked myself -- how would be define "Americanicity"? Presumably the best indicator would be the naturalization oath taken by naturalized citizens.

Sure enough... a naturalized citizen swears his loyalty, not to the United States as such, but to its Constitution and laws: "...that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same..."

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Posse Comitatus Act and response to Katrina

Posted by David Hardy · 16 September 2005 04:59 PM

In the wake of the hurricane, there have been references to the Posse Comitatus Act as barring use of active-duty military in restoring order, and this AP story says lawmakers are considering repealing the Act. If they'd just read the Act, and the Constitution, they'd realize there is no such need.

The Act provides:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.."

18 USC 1385. Note the exception for uses expressly authorized by the Constitution. When we turn to Article IV, section 4 of that document, we find: "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."

So the President has, and had, power to use the military to restore order ... provided the Governor requested it.

Continue reading "Posse Comitatus Act and response to Katrina"

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SAF, NRA seeking plaintiffs in New Orleans

Posted by David Hardy · 16 September 2005 03:28 PM

Second Amendment Fdn. has announced that, in cooperation with NRA, it's investigating legal action over the NO gun seizures. They request that anyone who was on the receiving end email [email protected] with name, address, phone no, and date of seizure and number of guns taken. (I'd assume that many who were on the receiving end presently have no address or phone, let alone ability to access the internet, but it's worth trying.

UPDATE" Welcome, instapundit readers! Take a look at the main page -- I've got notes on Roberts' position on the Second Amendment and other goodies.

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Roberts on the Second Amendment

Posted by David Hardy · 15 September 2005 04:47 PM

Thanks to a tip in a comment to the previous post, I've found a longer transcript of the 9/14 hearings on Robert's confirmation. Basically, (1) Roberts correctly sees Miller as going to the nature of the gun, and not as being a collective rights case; (2) but he sees Miller as leaving the issue up in the air, not as settling it in favor of individual rights (you can see Miller either as recognizing an individual right limited to military-type arms -- which I think is fair, based on the fact it remanded to take evidence, or as having decided only the narrow issue of whether non-military arms are covered, and leaving open the result if the arm IS military; and (3) he sounds like he'd vote for cert., so the issue will likely get hot, soon. Here is the relevant part:

"FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.
You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.

The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.

FEINGOLD: [I have no idea why there are two successive "FEINGOLDs" here. This appears to be continuous Feingold, that is, the above para. is not Roberts. That is also borne out by the reference to actions legislatures should not take "in my view," hardly the language of a judicial nominee] The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.

In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.

The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.

So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?
ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, "I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts." So I do think that issue is one that's likely to come before the court."

What's really interesting is how much Roberts knows about what is, to most jurists, a very obscure area. He knows that Miller involved a sawed-off shotgun, was decided in 1939, knows that the collective right view was presented in it, knows (although I'd read it differently) what the case held, knows what circuits are split and which way, even knows the lingo (I suspect most judges if asked about second amendment "collective rights" would wonder what that means). Perhaps it was covered in his briefing, but I doubt a fellow could remember that much given how much he must have been briefed on -- I'd suspect he's done a fair amount of reading on his own.

My own take on the Miller question follows....

Continue reading "Roberts on the Second Amendment"

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Minnesota church rulings

Posted by David Hardy · 14 September 2005 04:30 PM

From what I gather, Minn. law permits establishments to bar licensed CCW holders from carrying, if the establishment puts up a sign to that effect. A church challenged the provision and a local district court has entered a ruling striking it down. The argument was apparently that it abridged freedom of speech and religion by requiring a specifically-worded sign (the church cleverly worded a sign that had a religious msg. and didn't quite conform, so as to set up the suit).

Hmmm...

1. As to freedom of religion, the church can always rule out packing with a sign, so it really comes down to the sign.

2. As to freedom of speech... there is a doctrine that requiring speech is the same as forbidding it. But does this mean that we can object to the myriad of required signs? Those things with notice of workers' comp, elevator inspections, and yes, the signs required to be posted in gun shops? The signs posted on everything in California (even indoor parking garages) warning that this or that (in that case, exhaust fumes) are "known" by the state to be carcinogenic?

3. The effect may hinge upon how the law is worded. Here in AZ, for instance, the law defines misconduct with a firearm to include carrying if the establishment is signed or personal notice is given. If you strike the sign requirement, I don't think that makes carrying a violation of that statute. I think basic due process would forbid prosecuting a person who is conforming to the clear face of the statute, whether or not he's familiar with the caselaw. I suppose a church could charge persons with trespassing for refusing to obey. I'm not sure how one would reconcile calling armed police to imprison a person consistent with such fine feelings of nonviolence, but I suppose the church would find a way.

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Florida self-defense bills introduced in Michigan

Posted by David Hardy · 14 September 2005 04:26 PM

Two bills have been introduced in MI, patterned after the one passed in Florida a few months ago. They're reportedly a little narrower, only extending to defense in a dwelling.

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Commentary on new Texas law

Posted by David Hardy · 14 September 2005 09:26 AM

Scott Henson, who testified for the ACLU in favor of the new Texas law, has a commentary on how it's being implemented. Or not implemented.

More below....

Continue reading "Commentary on new Texas law"

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Tips for those writing law review articles

Posted by David Hardy · 13 September 2005 03:03 PM

Gene Volokh has started an interesting thread, where he asks for comments from law review editors on their process for screening articles. Comments so far are mostly from primary journals at the top 25 or so schools. They give some very interesting insights (which are totally outside my experience, which came at editing a law review 30 yrs ago, when there were many fewer submissions). Essentially:

Some of these places are getting 80 articles a day, others about 80 a week; initial screening is more like a quick skim.

The cover letter is thus VERY important, followed by the beginning of the article.

Turnaround is much quicker than in my day, usually a few weeks. If you submit to several reviews, and get an acceptance from one, you can go to others that you rank more highly, asked for expedited review, and get it in a few days.

The majority (and these are top reviews, mind you) get immediately chucked because they're terribly written, merely recite authority without adding analysis, are by law students, or are re-hashes of past articles by the same author with few, if any, changes.

Not that it'd matter to me, but it helps to have a big name. The smart reviews spot ones by well-known authors and review them immediately, in hopes of pumping out an acceptance before the other reviews can examine it and accept.

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Gun free schoolzones

Posted by David Hardy · 12 September 2005 09:54 PM

Alan Korwin has an interesting map depicting effect of the "Gun Free Schoolzones Act" in reality. Here's what its ban of guns within 1000 ft of a school looks like in Phoenix. I've seen depictions of Tucson, with similar results.

The one good thing is that no cases have been brought under it, for the simple reason that it's unconstitutional. The Supremes struck it in Lopez, for lack of a connection to interstate commerce. So Congress re-enacted it with a list of findings that possession in such areas does affect commerce -- but the opinion had noted that such findings would not affect its unconstitutionality. Glad to know Congress takes such a serious attitude toward its oath to support and defend the Constitution.

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VA gunshow operator considering class action

Posted by David Hardy · 12 September 2005 10:54 AM

From CNS News: the operator of the RIchmond-area gunshow that had the ATFE/State Police stake it out and run investigations of its buyers, based on their instant-check forms, is considering a class action lawsuit.

"The email address, [email protected], has been activated to receive messages from those who believe ATF or other law enforcement officials improperly violated their privacy or tried to discourage them from making lawful firearms purchases at the C&E shows."

More below.

Continue reading "VA gunshow operator considering class action"

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Militia protects LA neighborbood

Posted by David Hardy · 12 September 2005 08:41 AM

From the Austin American-Stateman: Armed militia protects its New Orleans neighborhood: Band of neighbors survived Hurricane Katrina, then fought off looters.

Continue reading "Militia protects LA neighborbood"

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Violent gun confiscation in NO

Posted by David Hardy · 11 September 2005 03:02 PM

If any Louisiana attorney wants a test case, here it is. Police entered the home of elderly Patricia Konie,asking that she leave. Her street is dry, you may notice. She explained that she didn't want to leave, she had food and water and, in case of looters, a gun. They asked to see the gun, and she produced a revolver, carefully holding it sideways around the frame and cylinder. The officers then body-slam her into a wall, take it, and escort her out staggering.
Video is lead story on Gun Owners of New Hampshire's webpage. I've seen rumors that ABC broadcast a full tape of the incident (i.e., with soundtrack) but haven't found it yet.
UPDATE: the officers involved were reportedly California Highway Patrol, not Louisiana folks. That may explain some things, i.e., they've never heard of a right to arms.
FURTHER UPDATE: if anyone has info on the whereabouts of Ms. Konie, please email me. A friend of hers has contacted me and is trying to find where she is.

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Battlefield conversions in N.O.

Posted by David Hardy · 11 September 2005 09:44 AM

It's even getting thru to the Boston Globe: 'Her comment was, 'I was a card-carrying, antigun liberal -- not anymore,' " Roe said. ''She said, 'I'm going back home, and I am not going back unarmed.' "

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My two bits on FEMA

Posted by David Hardy · 9 September 2005 07:39 PM

Off topic, but I was a federal bureaucrat of sorts for nearly ten years. See extended entry for details.

Continue reading "My two bits on FEMA"

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Further thoughts on New Orleans

Posted by David Hardy · 9 September 2005 03:55 PM

Comments to the previous post have led me to do a little thinking. I'm not the one to do it (not admitted to practice in LA), and the courts may nonfunctional (I saw a law blog posting where they mentioned that the district court and the 5th Cir. were badly flooded ... and where do you keep records in a counthouse? In the basement....) Anyway,

1. As noted below, LA has a right to bear arms clause in its constitution (with an exception for CCW laws, making it obvious that it's individual and broad).

2. As far as the federal rights goes, LA is in the 5th Circuit, which recognizes the 2nd Amendment as an individual right. The most probable result of a federal challenge would be either (a) a win or (b) some caselaw on time-manner-place limitations of exercising the right, which would be useful toward establishing a jurisprudence of the amendment. It might also lead to a decision on incorporating the 2d via the 14th, an issue not present in Emerson.

3. The right to keep and bear arms is nowhere more important than in an emergency such as this, when the most fundamental right of all -- to defend oneself and one's family when the government has failed to do so -- is on the line.

4. Assuming that a present-day challenge is out of the question, the courthouse being under water and all that, how would one be brought down the road? One comment mentioned an action for intentional infliction of emotional distress... I doubt that'd fly. I suspect, tho, that emotional distress would be compensable in a 1983 civil rights suit against the state. I recall you can recover nominal damages in one of those, too. Now, if someone was attacked, under conditions where they could have defended themselves, there would be a serious basis for seeking damages. Considering the conditions there (the jails having been opened up) there would be a basis to fear that.

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Same old-Same old in New Orleans

Posted by David Hardy · 8 September 2005 02:01 PM

Via Bob Dowlut:

The NY Times reports:

"NEW ORLEANS, Sept. 8 - Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered weapons, from civilians in preparation for a mass forced evacuation of the residents still living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms of any kind, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards but that the police had no plans to make them give up their weapons."

So--

1. The response to chaos is to disarm the legit gun owners who want to protect themselves;

2. But of course the hired guns for the wealthy can pack full-auto guns anytime -- the wealthy and their guardians are different;

3. Not that anyone would worry about the Louisiana Bill of Rights: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." Art. I, § 11. The right takes on added meaning where people have been subjected to looting, rape, and anarchy, which the local government did little to stop (and in fact some police were photographed taking part in the looting).

4 Or, even if there were no constitutional provision, where a local Superintendant of Police can find the power to disarm by fiat, in the absense of any statute allowing it.

[UPDATE: It's been pointed out that Louisiana law (14 La. Rev. Statutes 329.6) allows a Superintendant, when the governor has declared an emergency, to issue orders "Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition..." So he does have the statutory authority. Whether the statute is unconstitutional as applied remains as an issue.]

[FURTHER UPDATE: Dave Kopel presents some strong arguments that the order does violate statute: such an order has to be published in the newspaper and filed with several offices, none of which has apparently been done, and the use of "prohibiting" in other sections of the law and "regulating and controlling" here suggests that something less than total prohibition is authorized.

Orin Kerr differs with Dave, essentially arguing (1) while the statute says the order must be published and filed, it does not say that this is a precondition to its being effective and (2) the statutory power to "control" carrying of firearms is broad enough to cover the order, which doesn't bar ownership of guns but only their carrying.]

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More on ATFE/Virginia gunshow affair

Posted by David Hardy · 8 September 2005 01:29 PM

CNS News is covering it. Apparently the activities were carried out at seven gunshows in Richmond. From documents obtained, it would appear there were some Privacy Act violations, and attorney Richard Gardiner points out that it also involved illegal release of background check information (ATFE is only allowed to release to nonfeds information involving a purchaser that turns out to be an illegal one).

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Smith and Wesson

Posted by David Hardy · 8 September 2005 11:24 AM

I don't know squat about finance or investment, but this report suggests S&W is doing well.

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Reports of self defense in NO

Posted by David Hardy · 8 September 2005 11:14 AM

Here's one where the fellow took his .45 and bike and pedalled out of the city. The Chicago Tribune reports, as might be expected, a run on gun shops in the area. "On Wednesday morning he sold handguns to three nurses who were working in downtown New Orleans. Pirie also gave them shooting lessons, he said. The nurses told Pirie they were "going back into a war zone," he said. "They weren't going back without protection.""

"Brown, a van driver at a day-care center call Kidds Klub Academy, said she already owns a handgun.

"I got it. I'm ready," Brown said. "I'm trying to be nice, but if they come over, it's pow-pow," she said, gesturing as if she were holding a shotgun.

A 20-year-old African-American man, who declined to give his name, walked into a Mobile pawnshop and asked to look at two handguns. The man, who said he was thinking of buying a handgun for his 21st birthday in December, said he believed five evacuees from New Orleans were trying to take over portions of a public housing project and waved guns at him and his friends."

While we're at it -- in Washington state, the Good Humor Man packs heat a well as ice cream, and is glad he did so.

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2d Amendment conferences this month

Posted by David Hardy · 7 September 2005 03:30 PM

September's going to be a good month for conferences. On September 23-25, Second Amendment Foundation is hosting its Gun Rights Policy Conference in Los Angeles. More data here.

On Saturday, September 24, George Mason University law school in Fairfax, VA is hosting a symposium on the amendment. Presenting will be Bob Cottrol, Don Kates, Dave Kopel, Joyce Malcolm, Nelson Lund, and others. Sign up here (They're applying for CLE credit--anytime you can get six hours of free CLE, it's a heck of a deal).

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USA Today, accidents, and "unsecured" guns

Posted by David Hardy · 6 September 2005 07:39 AM

USA Today reports, with customary horror, that 1,700,000 children are in homes with unsecured guns, and that one-third of American homes have firearms in them. It goes on to say 1,400 "children and teens" are shot to death each year, and pumps for laws on gun storage (i.e., to criminalize failure to store in various ways). "It's a frightening problem," says Michael Barnes, president of the Brady Campaign to Prevent Gun Violence, a lobbying group that favors limiting gun ownership.

Let's look at the figures. Actually, in 2003 762 Americans of all ages died in gun accidents, according to the National Safety Council. USA Today gets a higher number by including teens (i.e., up to age 20) and gang-banger homicides, which are hardly revelant to safe gun storage. {UPDATE: above link is broken, but another one to NSC data.]

Economist John Lott calculated the actual number of child gun accidental deaths, and found it was about 30 per year -- lower than the number that die of drowning in buckets.

If about ninety million Americans are in households with guns, and 1.7 million kids are in households with "unsecured" guns (however the study defines that), yet only 30 a year die in accidents .... doesn't it stand to reason that the vast, vast majority of gunowners, and even "unsecured" gun owners, are doing something right? (One useful comparison: lots of houses have "unsecured" chemicals and medicines as well -- and 17,000 people die annually of poisoning accidents). If anything, the figures suggest gun owners display a truly exceptional degree of personal responsibility.

(One aspect: many refuse to use the term "gun accident," on the basis that "accident" imples no one was responsible, and someone had to mess up in each of those 30 cases. I don't hear owners of buckets and medicines and household chemicals being as choosy about the use of "accident.")

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Justice Janice Rogers Brown? It'd be great for RTKBA

Posted by David Hardy · 5 September 2005 12:05 PM

There is talk that Pres. Bush might nominate Janice Rogers Brown, of the DC Circuit, formerly of the California Supreme Court, as Associate Justice (tho Orin Kerr thinks she's too libertarian for the Administration). She'd probably be one heck of a pick for gunowners.

Item, here's her opinion in Kasler v. Lockyer, 23 Cal.4th 472, 2 P.3d 581, 97 Cal.Rptr.2d 334 (2000). She writes the opinion, upholding the California "assault weapons ban" against equal protection and other challenges, and saying lots of the usual about how the legislature concluded AWs are bad. Then she adds a concurrence (that seems a bit strange to me -- presumably California courts recognize that even the writer of an opinion may have something to say that the court as a whole didn't approve):

"This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.
The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . . The supposed quietude of the good man allures the ruffian; . . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . . Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.

After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, . . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ." (Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)"

Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that " `the constitutional right to bear arms' is included among the `laws and proceedings concerning personal liberty, personal security,' and property, and that `the free enjoyment of such immunities and rights' is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 549 (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)"

I also found her opinion in Harrott v. County of Kings, 25 Cal.4th 1138, 25 P.3d 649, 108 Cal.Rptr.2d 445 (2001). Nothing esp. quotable, but she reversed a trial court ruling forfeiting an "assault weapon." The state law prohibited certain guns and also those similar to them, and the trial court found this was similar. The ruling was that the statute should be read to mean that only the Attorney General can find whether a gun is sufficiently similar, and promulgate a regulation: she notes that the ordinary gunowner cannot be expected to decide how much similarity is required.

In Merrill v. Navegar, Inc., 26 Cal.4th 465, 28 P.3d 116, 110 Cal.Rptr.2d 370 (2001) she joined the majority opinion, rejecting a suit against a gun mfr for criminal use of a firearm they made.

No federal opinions for her, since she got confirmed to the DC circuit only three months ago (vote was 56-43, straight party lines except for one Demo crossing over to vote for her).

Item, here's Larry Pratt's review of her past firearms decisions.

Joe Biden has already threatened a filibuster.

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Sunstein on the future Roberts, C.J.

Posted by David Hardy · 5 September 2005 10:40 AM

(Blogging's light; I spent the last two days editing a first draft of the first third of the Second Amendment documentary).

Cass Sunstein, writing in the Wall St. Journal Online, suggests (much to his own relief) that John Roberts is not a constitutional "fundamentalist," whatever that is. (His definition seems to be a judge who is conservative and willing to do something about it).

I'd suggest a more accurate differentiation would be:

1. Someone (Sandy Levinson? It was in the Supreme Ct Rev, back when I was in law school, hence 1975 or before) suggests that approaches to the constitution divide the same way that religious views did in the Reformation, namely:

a. The "Catholic" view: interpretation of the key document (bible/constitution) is best confided to a group of experts, functioning as an institution. (Thus is is the business of the courts to determine the constitution, and it is a bit presumptuous for Congress to vote against a proposition, or the President to veto it, based on constitutional concerns. Their business is finding good policy, not interpreting the Constitution). Once questions are decided, you use them to build a hierarchy of decisions, with emphasis on deciding the present issues consistently with past decisions. You rarely question past decisions, since much may have been built upon them. The document is sort of a "living" document, since later decisions are part of it. [At the same time, the decisionmaker thinks of himself/herself as "finding" meanings, just courts "find" the meaning of the common law, as if it were Holmes' brooding omnipresence in the sky].

b. The "Protestant" view. The document itself is key, and every person has an obligation to use their best judgment in finding its meaning. You may consider experts, but they inform your opinion rather than bind it. Congress and the President have independent duties not to pass or approve measures they think unconstitutional: they, like the Justices, have taken an oath to support and defend the document. Since the document, rather than the hierarchy of decisions, is key, if a prior decision seems irrational, you do not accept it. (The author of the article pointed out that the late Justice Black, the ultimate exponent of this view, was the son of a minister and always carried a copy of the constitution in his pocket, just as his father had likely carried a Bible, so that if a question arose in conversation he could pull it out, read it, and explain his opinion based upon the exact wording).
This view can further divide into textualists (Black, and the present Justice Scalia) who largely consider the text alone to govern, and broader originalists (Justice Thomas) who consider text important, but also the original understanding of it. This can be important on Commerce Clause questions. The text itself just says Congress can regulate interstate commerce, a very broad statement, while original understanding suggests a narrower purpose was intended.
From what little we know of Roberts, he seems mostly of the "Protestant" view (nevermind his actual religion; I'm RC myself in religious but "protestant" in a constitutional sense). I say "mostly" because some of his decisions reflect a fair amount of concern about upsetting the caselaw hierarchy.

2. Activist vs. nonactivist. This deals not with what a judge believes but in how much he is willing to do about it. How certain must a judge be that a measure is unconstitutional before he strikes it down? Should the striking be narrow or broad? Should the judge move powerfully, since the Constitution itself is at stake, or cautiously, since he is a non-elected official acting to overturn what is presumably the majority will and the policy decisions of branches assigned to make policy? Here, it's clear that Roberts is nonactivist.

This would indicate Roberts is a nonactivist, mostly but not entirely "protestant" constitutional thinker. The limitation to this analysis is of course that we have only his decisions as a Circuit judge, who is bound to follow Supreme Court rulings (more or less) and knows he can be reversed if he goes out of line. What a person does when they become part of the body giving the orders may differ from what they did as a subordinate carrying out the orders.

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Still more on New Orleans, militia, and arms

Posted by David Hardy · 1 September 2005 09:47 PM

When locals fled to the Superdome for shelter, "The people were made to stand for hours .... so they could be searched "for firearms and alcohol."" Source.

With a predictable result. A A local news station reports:

"4:15 P.M. - (AP): Police say storm victims are being raped and beaten inside the New Orleans Convention Center....Police Chief Eddie Compass says he sent in 88 officers to quell the situation at the building, but they were quickly beaten back by an angry mob. Compass says, "We have individuals who are getting raped, we have individuals who are getting beaten."

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ACLU backs Texas gun liberalization

Posted by David Hardy · 1 September 2005 02:56 PM

The Houston Chronicle reports that the ACLU (I assume the state chapter!) joined with NRA to support the recent amendment liberalizing Texas firearms laws. "The law, House Bill 823, was supported by the National Rifle Association and the American Civil Liberties Union and opposed by various law-enforcement groups."

The story also reports that local prosecutors are suggesting that they won't pay much heed to the law. Texas long forbade carrying of a handgun, with an exception for anyone who was travelling, a term left undefined. (After it recently adopted CCW licenses, those gave an exception, but the article says that those licenses can be denied for many reasons having nothing to do with criminal records, e.g., default on a student loan or being behind on taxes). The amendment provided that a person is presumed to be "travelling" if they are essentially a lawful gun owner, in a private vehicle, and the gun is concealed.

But prosecutors and police are suggesting that it won't stop them from making arrests! It's a presumption, so they'll arrest even if it applies, and make the person go to court to prove their case. That's probably legal, but not very ethical.

Continue reading "ACLU backs Texas gun liberalization"

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Funny result of a gun "buyback"

Posted by David Hardy · 30 August 2005 09:36 AM

From the Miami Herald:

World War II vet gets back rare Japanese rifle he sold for $75

WEST PALM BEACH, Fla. - Days after World War II ended, American sailor Bruno Filippelli walked into a Tokyo shop and bought a Japanese army rifle and a saber for two packs of Chesterfield cigarettes.

Filippelli brought the gun home, where six decades later it was collecting dust in a closet. So last weekend, when the West Palm Beach police offered $75 Target gift cards to anyone who turned in a gun, Filippelli took it to the collection site.

That was almost a bad move.

An officer from another police department who is a gun collector saw a photo of the Arisaka Type 99 pressure test rifle in The Palm Beach Post and Filippelli soon learned the gun is a rarity worth thousands. He asked for it back, but the police originally said no. They planned to melt it down with
the other 450 firearms collected or give it to a museum.

[Story goes on to note that, after a lot of publicity, police finally gave the gun back] Fewer than 100 of the rifles were ever produced and maybe 50 are left, including about 20 in the United States, according to gun experts and dealers. The type of rifle was never used in the field. It was designed to
test the chamber pressure and bullet velocity for the Type 99 rifle, which Imperial Japanese forces widely used throughout World War II. .....

Continue reading "Funny result of a gun "buyback""

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Dicta from a recent Washington case

Posted by David Hardy · 29 August 2005 04:45 PM

Via Gene Volokh--some language in a recent concurring opinion. The defendant was stopped for driving without a license. Police found with drugs in his truck, and a firearm in a case behind the seat where it was quite difficult to get to. The question was whether an 18 month sentence enhancement for committing an offense "while armed" applied.

The conclusion was no, with the majority applying a test where "armed" means either a firearm is readily accessible, or else it bore some nexus or connection with the offense, and citing strings of cases determining whether a firearm was or was not sufficiently accessible, and whether the required nexus had or had not been proven.

Judger Sander's concurring opinion argued the test was too ambiguous, and cited a constitutional issue:

And should constitutional rights turn on these minute distinctions?
'{A}y, there's the rub.' In Schelin, four judges stated that '{r}equiring
a nexus between the defendant, the crime, and the weapon protects against
violation of the right to bear arms.' Schelin, 147 Wn.2d at 575 (opinion
of Ireland, J.). But this was a mere plurality. I stated that allowing the
imposition of a firearms sentence enhancement for other than use of the
'firearm to aid the commission of the crime charged' violated the state
constitution. Id. at 595 (opinion of Sanders, J.).

This court has not yet resolved whether the state constitution requires
more than a nebulous 'nexus' to infringe on the specific constitutional
right to keep and bear arms. Allowing innumerable factual distinctions
that make no difference to control the exercise of a constitutional right
that is absolute within its scope, leaves our citizenry blowing in the
proverbial wind, unable to discern whether their constitutionally protected
acts will be recognized by the courts.

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Changes to Texas law on firearms

Posted by David Hardy · 27 August 2005 07:52 PM

Just rec'd an email on this, haven't verified online yet. As I recollect, Texas had a rather strange legal regime until recently. Possession and ownership were OK, but it was illegal to "habitually carry" a handgun. Exactly what was "habitual" was up to the courts, but it presumably did not mean carrying for a specific shooting trip, and did mean carrying all the time for self-defense. Anyway:

HB 322,
Categories: Concealed carry. Status: Filed 01/06/05. Signed 6/17/05,
effective September 1, 2005.
Relating to concealed handgun licenses for members and veterans of
the United States armed forces.
Extends eligibility for a CHL to members or veterans of the United
States armed forces age 18 or older, including a member or veteran of
the reserves or national guard. Provides an extension of the license
for one year to members or veterans serving outside the US. Cuts
license fees in half for service members or veterans.

HB 823, Categories: Concealed carry. Status: Filed 02/03/05. Signed
6/16/05, effective September 1, 2005.
Relating to an exception to the application of the offense of
unlawful carrying of weapons.
Legalizes carrying a handgun for self-defense without a CHL while
travelling in a privately owned motor vehicle. This is an expansion
of rights, but it may result in a drop in the number of concealed
handgun licensees as those who want to carry only in their car drop
out. As amended, the law requires the handgun be concealed.

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Richmond Gun Show issue update

Posted by David Hardy · 23 August 2005 01:22 PM

Here's an update on the Richmond gun show affair. The agencies involved appear to be claiming they were checking out purchasers to make sure the ID was real and they were in-state residents. However, the reported questions went considerably beyond "Does someone by this name live here?"

It'd be interesting to see the results, since I suspect every ID that was checked checked out OK.

UPDATE: The owner of the gunshow has posted pictures of the event!

Here's a CNS reporter G. Gordon Liddy Show (streaming and big audio mpg file). He describes multiple squad cars with lights in parking lot, about 50 more LE vehicles near show, one exhibitor counted 72 officers, 30+ ATFE agents inside, walking the floor and watching with binocs from above. VA gunshows have a room set aside for state police to run the background checks. They'd take each 4473 and send local officers to the address indicated, asking anyone there not only if the person lived there, but did you know he's at a gun show, how often does he go, how many guns does he buy, etc. Owner of gunshow upset because attendance was quite low, she figures people saw all the squadcars outside and figured this wasn't going to be much fun.

Then G. Gordon interviews James Lalime, who brought a gun to the show to sell (he wasn't an exhibitor). He says an ATFE agent took him aside, accused him of buying and selling as a business (if you "engage in the business" of "dealing" without a license, it's a felony).

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Some serious horse_____

Posted by David Hardy · 22 August 2005 10:00 PM

The Lansing State Journal reports on a domestic case, where the parents had joint custody, the father got called up for duty in Iraq (agreeing to the mother's custody while he was out of country), and the court referee (somebody brought in to make a recommendation to the court so as to ease its difficult 9-4 with a long lunch workload) recommended that his joint custody be ended even after his return.

"Erb's lawyer, Theresa Sheets of Lansing, said Erb wanted full custody because she no longer found McNeilly to be a fit father.
"This has absolutely nothing to do with his military service," Sheets said.

"It has everything to do with his behavior as a parent."

Sheets pointed to the court referee's report that made the case against McNeilly.

The report says that McNeilly treats his son more like a friend than a son, and "sees the child as a counterpart in his military adventures."

It also questions some of McNeilly's correspondence to his son while on active duty.

McNeilly said one postcard showed a soldier holding a gun. Another showed a soldier spearing a tire as if it was an enemy.

The court report says McNeilly also told his son how to kill people in multiple ways, and that he wrote his son "the next time someone touches you and leaves bruises on you - I'll be ready."

McNeilly said the statements were taken out of context. And he believes the postcards were appropriate for a then-8-year-old boy.

But Sheets said the correspondence crossed the line.
"My client is making sure to turn off the TV when the news reports deaths in Iraq and (McNeilly) was engaging in behaviors that brought fear," Sheets said.

Translation: he wants to treat his son as a buddy, a young man, not as a widdle boy, and to share his life with him.

The one comforting thing is that in eight years the [profanity deleted] mother will lose her control, and the son will be able to resume a normal life, whether she has temporary control or not.

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Joyce Foundation in Ohio

Posted by David Hardy · 22 August 2005 10:06 AM

I've written on the Joyce Foundation before, here and here and here not to mention here. Essentially, it's a $653 million private foundation that has been ladling out big bucks on the antigun side, bankrolling fake "grassroots" groups, paying law reviews to run anti-second-amendment issues, etc..

Chad Baus of the Buckeye Firearms Association did a thorough investigation of Joyce's functioning in Ohio, and posted a long article on the BFA webpage. Among other things, Joyce is extensively bankrolling "Ohio Coalition Against Gun Violence," to the tune of $632,000 over a few years. In addition, it's bankrolling other supposed grassroots groups operated by the same people, to the tune of several hundred thousand more. It appears that these "grassroots" groups have, at best, a tiny handful of members, but they generate press coverage as if they were bona-fide local organizations. The one clear result, the report suggests, is that the handful (it looks like one or two) people running the groups are making a pretty good income off it.

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Akhil Amar's book "The Bill of Rights"

Posted by David Hardy · 18 August 2005 05:58 PM

Just spent many hours in the air perusing Prof. Amar's book.... it is, as one expects from his work, quite deep and with many original insights. Just a few--

On the 14th Amendment, he concludes that the intent was to make the federal Bill of Rights mostly applicable to the States through the privileges and immunities clause. The historical evidence for this was extensively compiled by Prof. Michael Kent Curtis in his book "No State Shall Abridge," and Amar adds convincing rebuttals to the responses made to Curtis and other advocates of P&I incorporation.

Then Amar suggests that total incorporation, of the type advocated by Justice Black (all provisions of the first 8 amendments apply to the States) may be too mechanical. (To back up a bit, the Framers of the 14th repeatedly said that the Bill of Rights wasn't all of the "privileges and immunities" of US citizens. Among other things, there were the protections in the Constitution itself, such as the restrictions on suspension of habeas corpus, ban on bills of attainder, etc. that are lumped in with other restrictions on the power of Congress such as no direct taxes).

He suggests that restrictions on the federal government were of two classes. First, recognitions of rights, of natural rights. Second, limits on Federal power (which I'd phrase as limits meant to restrict the new government alone -- not seen as universal rights, to be observed in any free government, but as safeguards appropriate to this new and risky establishment). The limitations on direct taxation clearly fall here. Perhaps the right to jury trial in civil cases (it's hard to see why a universal right would only kick in if the controversy exceeded $20). Grand jury -- probably a toss-up.

I promised some controversy... Amar shows that the right to arms was clearly meant as a recognition of a universal right, and should be applicable to the states. He also suggests that the first amendment provision forbidding Congress to pass any law "respecting an establishment" of religion might better be classed in the second category, as a restriction unique to the federal government. After all, several states had established churches at the time of the framing (some of which lasted into the 1820s), and by forbidding Congress to make any law "respecting" an establishment, the First Amendment also forbade Congress to interfere with State established churches.

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Mandatory explusion for gun possession at schools

Posted by David Hardy · 14 August 2005 12:57 PM

Alan Korwin has an interesting note (via his email list): mandatory explusion policies at schools were driven by a Clinton-era federal law stripping schools of Federal funding unless they enacted such policies. (Another good reason, BTW, for curtailing Federal funding. Local units can as easily tax and spend as the Feds -- both get their money from the same place, the taxpayers -- and Federal funding equals Federal ability to strongarm policies and thus loss of local control of education). The Federal restriction on funding has been repealed, but local policies often remain. Click on read more for Alan's post.

Continue reading "Mandatory explusion for gun possession at schools"

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Long term thoughts on the gun issue

Posted by David Hardy · 9 August 2005 09:19 AM

My involvement in this area goes way back -- I started writing on it as an undergrad, about 1970, and published my first law review article on it in 1975. I think I see a historical pattern....

1960s-early 1970s. The push was for national legislation, registration, permit systems, that manner of thing. Supporters of it found it hard going. (Original GCA 68 applied only to handguns, as I recall; after the assassination of Martin Luther King it was amended to apply to rifles. So national permit systems were going to be hard sell, but fight over these continued for some years).

Late 1970s: move is to ban Saturday Night Specials, defined as handguns with short barrels and cheap. After prices rose, it was to ban all snub nosed pistols. Notice how much narrower this is than the original objective. We've gone from national registration and permits and maybe handgun bans to trying to ban pistols with barrels under 3". Some bans were passed on imports, but neither ban was enacted.

By 1980, even this is become hard to sell. I think it was 1979 when Handgun Control Inc. went out with press release that Ted kennedy was going to introduce a broad gun bill. Background was that Kennedy, who was looking at a primary run against Carter, had been stalling on any such, and HCI had to use the stories to embarass him into filing the bill.

Early 80s: skirmishing over ATF regulations and ATF abuses. I recall seeing an early Carter Admin memo where writer says someone is going to have to break it to proponents of control that Carter Admin is NOT going to push for much in way of gun laws, and that someone above the writer's rank is going to have to be the one to break it to them. Ends with Firearm Owner's Protection Act in 1986. Other side wins minor victory in ban on civilian sale of full autos made after 1986. If you had told folks in 1970 that fifteen years later gunnies would be able to push through major changes, and their opponents would have to settle for a return this narrow, no one would have believed it.

1990s: If the 60s and 70s were world war II, this is border raiding. Brady Act, requiring "instant" background checks for buys from licensed dealers. Assault Weapon ban, which expires (and whose real world effect was limited to making mfrs delete bayonet lugs and flash suppressors, no major barrier). DV ban. The issue really seems to devolve into finding some very narrow area, where when NRA defends it can be attacked in the press. That is, the entire function is to embarass the opponent rather than to enact anything of significance.

2000s: even that is starting to fade. Minor skirmishing over "gun show loophole." But since Dept of Justice studies show that only about 1-2% of incarcerated offenders who used guns got them at gun shows (and that figure includes those convicted only of firearms violations and first offenders who would have passed a background check anyway), it's hard to argue that this will have any real-world effect. Violence Policy Center with aid of media pushes the .50 caliber rifle issue, but even that gains no traction. Again, since no .50 cal has ever been used in crime, it's hard to see a real-world result.

Thus in 30-40 yrs we go from major battles to border skirmishes. Now, if a person did believe that gun control worked, it would be possible for them in 1970 to think that if the laws being fought over were enacted, some measurably good consequences would follow. I don't think that's the case today. If you could get inside the heads of the folks at Brady or VPC, who I assume are well-informed on the facts, I don't think you would find that they believe the legislation proposed since 2000 would, if enacted, change the crime picture a bit. The basis for pushing it, instead, is hopes that they can embarass the NRA in the media when it opposes. But that's a pretty thin basis for a political movement.

Another way to look at the trend. Brady Campaign started out as National Council to Control Handguns. I have its early pamphlets, in which it argues that registration and permit systems were bad ideas. That's because it wanted a complete handgun ban, testified to that effect, and thought a national permit system would be proposed as a compromise (attesting to the weak condition it thought the gun movement was in). Later, as Handgun Control, Inc., it disavowed handgun bans and advocated permit systems, the very compromise it had earlier feared. As Brady Campaign, I believe it now disavows (or at least plays down, way down) national registration or permit systems, and is content to criticize NRA for the most part, occasionally proposing assault weapon bans, but even that rather quietly.

UPDATE: in response to comments, that's an interesting bit of history. The Brady Campaign was initially named the National Council to Control Handguns (altho in fact it started out trying to ban them). There was also a National Coalition to Ban Handguns (today operating under a different name). NCCH and NCBH decided their names and acronyms were too similar, and (presumably since it had less seniority) NCCH changed its name Handgun Control, Inc.
HCI/Brady was really put on the map by Pete Shields, who had been a top-level exec (I think a VP) with Dupont. He knew organization and fundraising and PR, and took them from two guys in a tiny office into a major organization. I know some folks on the other side of the gun issue who are rather irritated at the present Brady Campaign, for having essentially "forgotten" Shields, and making the group center on the Bradys, when it was Shields who really created everything and, indeed, brought the Bradys on board. I knew Shields a little, debated him a few times, and he was a pretty decent fellow. Having searched the Brady Campaign website for his name, and found a few passing mentions and no pics, I'd tend to join in the irritation. His counterpart on the gun side was Harlon Carter, who took NRA from a few hundred thousand shooter into a 3 million member political movement. NRA named its headquarters after him, memorializes him at every annual meeting, honors his name. I'd suggest that Brady Campaign owes Pete Shields the same respect.

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CBS, .50 cals, and the strange witness

Posted by David Hardy · 8 August 2005 05:01 PM

The present (Aug. 10) issue of Gun Week has an interesting headline story by Dave Workman. Last month CBS ran a hit piece on .50 BMG rifles, and it used as a major witness a fellow named Krasniqi (first name variously spelled Florin or Florim), who claimed he'd purchased scores of .50s and run them to Albanians fighting in Kosovo. He was also featured in a PBS broadcast shortly after the CBS piece. (One review of the PBS piece notes, "Though Krasniqi clearly benefited from lax gun laws, one reason he agreed to the film was to expose them. "He thinks gun laws are ridiculous in this country," Quirijns said."

Workman looked into the fellow's background and eventually came across the Federal Elections Commission records of political contributions. Strangely, for a supposed gun-runner, he contributed:

$3000 to John Kerry (exceeding the legal max; they had to send $1000 back);
$1000 to Rep. Tom Lantos;
Several thousand to Jerrold Nagler, Eliot Engel, John McCain, etc.

I went to the FEC contributors search page and it checks out. Search for "Krasniqi." You're looking for a guy in Brooklyn, zip code 11228 (He reports his employer as several businesses).

I could be wrong, but it looks to me as if he gave $4000 to Kerry and had $1000 refunded. Total contributions are over $20,000.

Might we have a "ringer" here? As a general rule, if you're engaged in illegal international arms trafficking, publicity is NOT a good thing. But this guy is featured (with his own cooperation) in a documentary film, 60 Minutes, a book, a NY newspaper article, and at least one webpage (with his pic, taken by a family member).

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Thoughts on an "evolving constitution"

Posted by David Hardy · 6 August 2005 09:37 AM

I'm beginning editing on my 2d Amendment documentary film (may get around to posting some clips, but that will take a while). In one clip, Prof Gene Volokh of UCLA law (and host of The Volokh Conspiracy makes a very interesting point.

In opposing the individual rights view (and sometimes in trying to assail/defend non-RTBA doctrines) some have advanced the idea of the "living constitution," that is, that the document somehow changes meaning over time (and in this context can change meaning so dramatically that X becomes non-X).

Gene says he can't agree...the very purpose of having a written constitution is to bind yourself by a specific past decision of the people. (And it might be pointed out that the constitution's requirement for amendments -- 2/3 of both Houses plus 3/4 of the States -- demonstrates that any changes were meant to be formal and reflect, not a vague perception of consensus, but a formal, democratic, decision supported by an overwhelming majority of Americans). But, he asks, IF we were to take that view, how would we decide whether the Constitution had changed or evolved?

We could look to decisions of Congress (the most doubtful, since the BoR was meant to restrain Congress). But in the Firearm Owners' Protection Act of 1986, in the preamble, Congress specifically found that the 2d amendment was an individual right. There are other similar findings in other legislation, all supported by a Congressional majority vote. So Congressional decisions cannot support a view that the Constitution has "evolved" so as to exclude a right to arms. If anything, it would suggest that the Constitution "evolved" toward a stronger individual rights view.

Maybe decisions of State legislatures, or the people of the States as a polity? He points out that the overwhelming majority of State constitutions have right to arms clauses, and almost all of those point to individual rights. All the changes in these over the last 20-25 years have been to make the provisions more clearly individual rights related. So we can't cite decisions of the States, or the people of the States acting as such, either. If anything, this, too, suggests that the right would have "evolved" toward a stronger individual right.

Maybe the people at large? Without formal vote, this is hard to calculate, but he points out all polls show a great majority of the American people believe they have an individual right to arms. So the three ways we could calculate whether the right has "evolved" all point to it evolving toward a stronger right.

The only approach, he suggests, where one could argue that the right has "evolved" the other way, is to say the heck with Congress, State legislatures, the people of the States, or the people in general -- the views of judges, the legal elites, etc., have "evolved" against an individual rights. This, he suggests is the one completely impermissible approach to constitutional "evolution."

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Webpage on Parker case (challenge to DC handgun ban

Posted by David Hardy · 4 August 2005 02:36 PM

Alan Gura, counsel for the plaintiffs challenging the DC handgun ban, has posed a webpage with the pleadings in .pdf format.

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John Roberts and judicial restraint

Posted by David Hardy · 3 August 2005 04:16 PM

National Archives has posted a page of memos written by John Roberts while he was counselor to the Attorney General. One in particular (No. 6) brings to mind the challenge posted here earlier by Prof. Robert Cottrol, namely, are Second Amendment supporters necessarily better off with a "conservative" justice, or might we be better served by "liberal" ones who are less reluctant to strike down laws?

Here's the relevant language:

A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called "fundamental rights" and "suspect class" analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, determine the constitutionality of enactments when the issue is properly presented in litigation. In discharging that responsibility, however, courts also must, in the words of Justice Frankfurter, have "due regard to the fact that [they are] not exercising a primary judgment but [are] sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164 (1951) (concurring opinion). Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.

Two devices which invite courts to do just that are "fundamental rights" and "suspect class" review. It is of course difficult to criticize "fundamental rights" in the abstract. All of us, for example, may heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label "fundamental," and then resort to it as, in the words of one of Justice Black's dissents, "a loose, flexible, uncontrolled standard for holding laws unconstitutional."J Griswold v. Connecticut, 381 U.S. 479, 521 (1965). The broad range of rights which are now alleged to be "fundamental" by litigants, with only the most tenuous connection to the Constitution, bears ample witness to the dangers of this doctrine. Analysis based on "suspect classes" presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other "insular and discrete" groups, however, represents an unjustified intrusion into legislative affairs. As with fundamental rights, there is no discernible limit to such intrusion. As Justice Rehnquist has put it: "Our society, consisting of over 200 million individuals of multitudinous origins, customs, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find 'insular and discrete' minorities at every turn in the road." Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (dissenting opinion). Both "fundamental rights" and "suspect classes" stand as invitations for a degree of judicial intrusion not invited by the Constitution, a means through which courts impose values which do not have their source in that document.

UPDATE: Thanks for the comment -- I did indeed mean John Roberts, the judge, not John Edwards, the former VP candidate! Typo corrected.

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Lott on Demos creating fake gun groups

Posted by David Hardy · 3 August 2005 02:59 PM

John Lott has an interesting posting regarding the "American Hunters and Shooters Association," a strange group that recently appeared out of nowhere and claims to represent moderate gunowners (i.e., one who support AW bans and any type of gun control that has a 10% chance of passage).

Lott points out--

1. Their website turns out to be registered to a DC public relations firm that represents the Democratic Leadership Council and other Demo party organizations.

2. The head of the organization is John Rosenthal, who in fact is a founder of an antigun group.

3. The address of the new organization is in the same building as Democratic Leadership Council.

4. The present head of the DLC is one Hilary Clinton. Dick Morris has written about how she specialized in creation of fake "grassroots" groups to back her agenda, and set up a task force in the Clinton White House to brainstorm creation of these.

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Bellesiles: Clayton finds a convert

Posted by David Hardy · 3 August 2005 10:51 AM

Clayton Cramer posts "Dr. Luker Sees The Light".

Clayton is of course the fellow who brought down Michael Bellesiles, and he had written an article on problems of integrity in the historical research field, which Dr. Ralph Luker had criticized as overstating the problem. But recently Luker penned an open letter to the Organization of American Historians, asking if it "has become the place where Offences Are Honored." Luker points out that the OAH has never revoked its award to Bellesiles, and is still listing some other discredited historians in its "distinguished lecturer" program.

Clayton ends by asking whether the field of history "has become so controlled by the faction that lies or excuses lies--people like Bellesiles, John L. Larson, editor of the Journal of the Early Republic, and the leadership of the OAH--that the profession of historian no longer exists in any meaningful sense."

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Sheriffs deny signing Brady Campaign letter, but Brady continues to use their names

Posted by David Hardy · 23 July 2005 11:16 AM

The American Chronicle has some interesting investigative reporting. Brady Campaign submitted a letter during Congressional hearings, and posted it to their website, which was supposedly signed by law enforcement officials. The author of the article tracked down a number of LEOS from his state whose names were on the letter, and all denied signing or approving it, and demanded that Brady take their names off it. The Brady Campaign agreed -- but weeks later, their names are still on the letter, and in fact have been attached to another letter endorsing a different Brady-backed bill.

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Parker case -- challenge to DC law

Posted by David Hardy · 22 July 2005 04:05 PM

In the Parker appeal, here are a couple of filings (pdf format) fresh from the Plaintiffs' counsel Alan Gura. The first is the Defendant's motion, in the DC Circuit, for summary affirmance (arguing that standing is foreclosed by the Circuit's ruling in Seegers, the other challenge to the law).

The second is Plaintiffs' response, which points out that they developed a more extensive record than did the Seegers plaintiffs. It's humorous, by the way, how DC officials start in asserting they WILL enforce the law and then, after figuring out that standing to sue can be proven if a realistic fear of prosecution exists, begin hedging with they would "normally" enforce the law, etc.

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David Kopel on federal setencing guidelines proposal

Posted by David Hardy · 21 July 2005 02:59 PM

Over at the Volokh Conspiracy, David Kopel has posted a link to his paper on pending legislation to change the Federal sentencing guidelines. Very interesting material. I thought the original sentencing guidelines were a pile of Draconian trash, and Dave makes a strong argument that the replacement legislation is considerably worse.

Back when I was at Interior, the law enforcement types were lobbying the commission to get sentences for the offenses they went after (mostly rather minor) increased. The motivation was NOT a belief that more punishment was appropriate. Rather, it was an understanding that federal prosecutors used the number of guideline points to assess how serious a case was -- if the offense added up to twenty points, a busy US Atty was more likely to take it than if they added up to ten or twelve. I know of one case where a similar move was made through Congress, and the LEs tesified quite frankly that they wanted certain things made felonies because US Attorneys wouldn't take them as misdemeanors, they just sounded so insignificant. Nothing like justice!

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David Kopel on federal setencing guidelines proposal

Posted by David Hardy · 21 July 2005 02:59 PM

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Parker challenge to DC gun law

Posted by David Hardy · 15 July 2005 11:06 AM

The Parker case survived challenges to standing (while Seegers did not), and plaintiffs' counsel Bob Levy and Alan Gura have moved for a briefing schedule. Their motion, which discusses the standing issue, is available in .pdf here

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Chief Justice in hospital

Posted by David Hardy · 13 July 2005 01:41 PM

CJ Rehnquist has been hospitalized with a fever. This can be very bad news, as he's 80 and may still have the thyroid cancer -- cancer can knock back the immune system, and so can the chemo used to treat it, and at some point the immune system gets so low that even "harmless" bugs like the ones in the intestines and bladder can cause fatal infection. (If you want to know how I learned this stuff, check out the memorial webpage for my former wife).

Which means we may be looking at two nominations. Of the existing Court, I'd have counted the CJ as probably pro-2d Amendment, based on his opinion in Verdugo-whatever, where the opinion went out of the way to cite the Amendment as a right of individuals (the case had nothing to do with arms, and the reference was hardly core to its logic, so I think it was inserted to lay the groundwork for a possible later 2nd Amendment case). O'Connor -- no written positions, ranching background might mean sympathy, but her opinions of late make her quite unpredictable. So we lose one likely vote and one unknown. One good pro-2nd appointment merely leaves us where we were, it'd take two to improve the situation. (With Scalia and Thomas being pro-Amendment, that'd give us four good ones and five unknowns. (The late Roy Lucas once told me he'd watched a Supreme Ct argument dealing with guns in some way, and he thought that Souter's body language suggested he had some deeply-felt dislike of guns).

I hope firearm groups are doing serious, serious thinking and lobbying on this. You can bet that other GOP-supporting groups (right to life, etc.) are making clear that they helped elect the present administration and expect a few favors now. Anyone who doesn't speak up now is apt to be forgotten.

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Ban on imports

Posted by David Hardy · 13 July 2005 10:41 AM

Have heard a report (no link yet) that BATFE has announced a ban on importation of "nonsporting" receivers and barrels, whatever those might be.

A key problem with the statute (and one which ought to be addressed by amendment) is that it permits importation bans of firearms not generally recognized as suitable for sporting purposes. As far as "sporting purposes" goes, the Second Amendment isn't about duck hunting, as they say. An equally great problem is the "generally recognized" portion. It allows a ban based on the argument that "maybe it is suitable for sporting purposes, but it's isn't "generally recognized" as so suited." That's how the initial import ban was justified -- review a bunch of gun magazines, and argue that there aren't enough references to a gun, or a type of gun, being useful for sport: whether it is or isn't suitable is no longer the question, and the agency can decide just how many mentions it takes to make something "generally recognized."

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How typical....

Posted by David Hardy · 12 July 2005 01:20 PM

The Brady Campaign is hosting a fundraising dinner ... at the French Embassy

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Interesting challenge to NY gunshow law

Posted by David Hardy · 8 July 2005 06:53 PM

A tip from Dan Gifford. According to the Rochester Democrat & Chronicle, attorneys challenging a new NY gun show law have raised an unusual point. The law makes it a crime to have a "gun show" without capability for running criminal background checks, and defines "gun show" as any gathering of gun enthusiasts. That would include shooting club meetings, their fundraising dinners, etc., etc.

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Interesting webpage on homicide

Posted by David Hardy · 8 July 2005 11:11 AM

Just was alerted (hat tip to Budd Schroeder) to a most interesting webpage on homicide rates. (It's not gun law driven, as it were -- apparently compiled by a researcher in the concept of life extension & cryonics, who figured that since neither does much good if a person is murdered, homicide was worth some detailed study.

The webpage breaks down homicide rates on an international, state, and city level, trends over time, especially hazardous occupations (taxicab driving is worst) and locations (liquor stores), etc. Of some interest to us:

The US doesn't make the top ten for homicide.
Among the ten safest countries are Switzerland, Israel, and Finland, where guns are common.
Worst city for murder is DC (rate 45.8). Philadelphia, which has had a push for gun control with claims the state controls are too loose, is no. 6 with under half DC's rate (19.0). Dallas is no. 10.
Ten safest cities are led by Honolulu (lots of gun control, followed by El Paso (very little gun control).
61% of US homicides are male kills male. Only 2.4% are female kills female.
Half or more of homcide victims were intoxicated at the time. Intoxication rates were highest in murder by drowning (presumably because that's not easy with a resisting victim).

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Are all federal shooting ranges open to the public, by law?

Posted by David Hardy · 6 July 2005 10:51 AM

Alan Korwin again comes up with a fascinating legal question, in PhoenixNews.com....

Under 10 USC 4309, it appears that all Federally-owned shooting ranges are open to the public (under such regulations as may be applied by the agency). From the face of the statute, it appears that even military ranges must be open (although the military has first dibs on their use). And further that ONLY military ranges may charge fees.

I've verified that the statute is on the books and is as he says, haven't had a chance to look up its history and context yet.

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House votes against part of DC gun ban

Posted by David Hardy · 5 July 2005 09:40 AM

The House just passed a restriction on enforcement (not a true repeal) of part of the DC gun ban. IF the WashPo report is correct, it would forbid use of appropriated funds to enforce the requirement that firearms (in this case mostly registered rifles and shotguns, since new registrations of handguns have been forbidden for decades) be kept disassembled or trigger locked while in the home.

I suspect this is more symbolic than anything else. (1) I rather doubt that section of the law is enforced or in most cases enforcable. Back in the 80s I remember Mayor Marion Barry being asked about it during a congressional hearing and essentially responding that, well, there are sections of the law that nobody obeys. (2) While a federal agency has nothing but appropriated funds, so forbidding it to use them for a purpose means there is no way to carry out that purpose, DC has tax and other income. Of course, the bill might be drafted to get around that, i.e., to prohibit use of any funds for that purpose.

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Rehearing denied in DC challenge (Seegers)

Posted by David Hardy · 1 July 2005 06:47 PM

Triggerfinger reports that rehearing has been denied in Seegers. I have an interesting proposal for dealing with the standing issue that is at the heart of that (and many other gun cases).

The DC Circuit ruled that the plaintiffs lacked "standing." That's a jurisdictional requirement arising largely out of the Constitution's provisio that Federal cases must involve a "case and controversy," a real, practical, legal dispute. If a person is not being prosecuted, there are some serious limitations on whether he/she can take the offensive and sue to challenge a law (esp. when the always-special First Amendment is not involved). The standing barrier is a major threat to test cases, which is why when I taught bringing the Federal test case as part of a CLE course, I started with it, and stated it had a higher potential of killing your case than any other defense.

A thought I just had. The challenge here is to DC's refusal to issue handgun permits, and requirement that any long guns be disassembled or trigger locked. Plaintiffs are challenging because it prevents them from defending themselves.

Now... in environmental cases the Supreme Court has recognized "aesthetic standing." Sierra Club v. Morton I believe was the first case, more recently the American Cetasian or however you spell whales in a fancy mode. In the latter the harm was that the govt action allegedly might reduce whale populations, which would impair plaintiffs' enjoyment of whale watching. That string of cases establishes that emotional harm (down to possible loss of seeing something you like to see) is sufficient "harm in fact" to confer standing.

If that is the case, then is there not an argument that deprivation of a feeling of security is "harm in fact," and thus laws that cause that deprivation are actionable? The desire to feel safe from deadly assault is surely stronger than the desire to see open landscape or watch whales.

Further thought: a complication.... in the enviro cases the alleged emotional harm flows directly from the government action. In a firearms case there is an intervening event... the law causes plaintiff to obey it, which causes the distress. Courts might tend to say that that intervening cause puts you back in the box.

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Police chiefs poll

Posted by David Hardy · 30 June 2005 04:16 PM

The National Assn of Chiefs of Police has released its annual poll of police chiefs and sheriffs. Among the results:

93.6% stated they support private ownership of firearms.

63.% believe that liberalizing concealed carry will reduce crime.

On the side, 28% supported decriminalizing marihuana, and 42% supported medicinal marihuana.

The firearm results are encouraging, since this is a poll of the top dogs in each department, who have historically tended to be much less pro-gun than the average officer working for them.

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New Oregon decision on right to arms

Posted by David Hardy · 30 June 2005 03:17 PM

The Oregon Supreme Court just handed down State v. Hirsch, holding that:

1. The state right to arms is an individual right (rejecting the state's claim that it was some manner of communitarian, i.e., collective, right);

2. Even felons are within its scope (citing a 19th century statute that created a lien on felon's property, but exempted their firearms from it); but

3. The prohibition on felons owning is a reasonable regulation of their right.

Interesting statistical work

Posted by David Hardy · 21 June 2005 01:35 PM

Just came across economist Alexander Tabarrok's webpage. I found a couple of interesting papers there.

1. He realized that the varying levels of terror alert in Washington DC lead to varying concentrations of police in certain areas, and this could be used to verify whether increased police presence really does reduce crime. What is needed for this is a variance in policing that is unrelated to street crime -- hard to find, since usually police presence comes as a reaction to crime increases. He ran the data, and found that crime dropped around 6.6% on days when police forces were increased. There was an esp. strong effect on auto theft and thefts from autos, outdoor offenses where being seen by an officer is a particularly high risk.

2. He re-ran Lott's famous and controversial study concluding that enactment of "shall issue" carrying concealed weapons laws reduces crime. (I don't know enough about statistics to understand just what he did different, but it certainly sounds like a significant change in method). His conclusion was that such laws indeed decrease violent crime, although they increase property crime. One explanation he suggests is that criminals may abandon armed robbery, still want to make money illegally, and thus turn to burglary and nonviolent theft. Still, a change for the better.

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Looking to future Supreme Courts

Posted by David Hardy · 21 June 2005 10:08 AM

Prof. Robert Cottrol of George Washington Univ. college of law has raised an interesting question in an email, which I'd like to put up for discussion. He prefaced it with a running joke he has -- the problem with advocating the right to arms is the liberals don't like arms and conservatives don't like rights.

" Basically if you look at the last 50 years, if not before, where liberals have seen a right they have moved for vigorous enforcement of that right. Their view has been that nothing can be allowed to stand in the way of protection of an individual right. Convservatives on the other hand have tended to be very timid and tentative in the enforcement of rights and indeed have been generally reluctant to even discuss rights. They have tended to oppose (14th Amendment) incorporation, now only reluctantly accepting it as a fait accompli -- -- and even then probably as a fait accompli that they would overturn if the opportunity presents itself. On the second amendment, their support has quite frankly been rather anemic -- -- it's clear that many support it opportunistically, i.e., because the Democrats over the last ten years have been dumb enough to embrace European style gun control as a core value in a nation where roughly 50% of the population lives in households with firearms. Conservatives have adopted the second amendment because it is good politics, but I don't see, with some exceptions, the kind of passion and commitment that liberals show for rights that they value.

So perhaps the discussion we might have is over the long run will the second amendment be best protected by people who are generally hostile to the right but who have shown a broader commitment to individual rights or by people who are at least nominally in favor of the right but who have shown a rather weak commitment to individual rights generally?"

Let me add to Bob's point a few practical examples. Robert Bork, the ultimate conservative-right nominee for the Court. After his nomination bid ended, his writings made it quite clear that he was strongly anti-Second Amendment and would have been a disaster for the cause. He was not exactly supportive of the concept of rights as a generality (being of the statist branch of conservativism) and held the same view of the Second Amendment.

Conversely, Professors William van Alstyne and Akhil Amar, both very liberal, but both strongly supportive of the right to arms (albeit with limitations), probably because, having concluded that there was a right, they instinctively feel obliged to protect it. And Instapundit has an interesting article on the late Byron "Whizzer" White, a generally liberal Justice, but who had something of a libertarian streak that led him to vote to strike laws that just made no sense. (That is, he bucked the trend that if a law is subjected to "rational basis" analysis it is always upheld -- for him "rational basis" meant something more than "uphold the law if we can dream up any rationale for it that is not completely psychotic").

The ultimate nominee would of course be someone who has already proven to be pro-Second Amendment, someone like Judge Kozinski. But assuming we can't have that, is is better to cheer on someone who is known to be conservative, or perhaps a liberal who is open to being won over?

UPDATE: A rather modest commenter (I'd expect with a good website like that that he'd have been plugging it earlier!) posts a very informative webpage on Virginia legal provisions relating to arms and the militia, colonial VA classified ads (yes, there were such things in the 18th century) relating to arms, contemporary VA law relating to arms, and lots of other related matters. Soon as I get a chance, I'll add it into the sidebar.

ANOTHER: Bob and Clayton Cramer have pointed out the curious split of the Supreme Court in the recent case holding that a foreign conviction is not a felony under the Gun Control Act. Voting for that position was the liberal wing -- Breyer, Stevens, Sutor, Ginsberg. Voting against it, and thus for broader reading of the GCA, were the staunchly pro-2d Amendment Thomas and Scalia.

Continue reading "Looking to future Supreme Courts"

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Unusual uses for firearms, part one

Posted by David Hardy · 17 June 2005 05:38 PM

They shoot horses, don't they?

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Supremes Act on US v. Stewart

Posted by David Hardy · 13 June 2005 01:06 PM

US v. Stewart is an appeal from a 9th Circuit panel ruling, reversing a conviction under 18 USC 922(o) for having possessed a homemade full auto weapon. The panel (led by the pro-gun and libertarian-leaning Judge Kozinksi) reversed based on the Commerce Clause -- there was nothing commercial about the defendant's making the arm and keeping it in his home. (You can get the pdf file via the link on this page.

The Supremes (as I'd expected) remanded for reconsideration in light of their recent medicinal pot case.

There are similarities and distinctions between the two cases. On the one hand, given that the medicinal pot case says you must consider the entire of the economic activity and not just the defendant's actions, or what was legal activity, it undercuts the original Stewart rationale. It'd be a safe bet that there is enough illegal commerce in full auto to pass any likely commerce test.

On the other hand, Stewart does resemble Lopez in that it involves a non-economic possessory activity (indeed, it could be a bit stronger than Lopez in that here the gun involved had not even travelled in commerce). Although -- if we are to look at an entire "industry" rather a segment of it -- possession of a gun within 1000 ft. of a school can hardly spawn an industry, whereas making machineguns could.

Further thought: what role would Congressional determinations play? In the medicinal pot case, Congress had expressly found, in preambles to the drug laws, that there was interstate commerce and impacts upon interstate commerce. In the case of 922(o), it was an amendment, hastily added with almost no debate and zip mention of interstate commerce. Congress just voted to ban new MGs because it sounded like a good idea at the time.

Still another thought: how does the fact play in that, if there were no 922(o), all MGs would still have to be registered under the NFA? Plus the fact that registered MGs have been involved in no or virtually no crime, and thus don't affect commerce negatively? (I think around the time of this amendment, ATF was asked whether there was any evidence of a registered NFA device having ever been used in crime, and it responded no -- back in the mid 1970s, I did have one dealer tell me that he had once heard of a criminal use of a registered NFA, but that was the only case. So depending upon which is correct, the answer is one or zero, in seventy years of the statutory scheme). Here's a link to an ATF statement (pdf, 4 megs) that that registered NFAs are rarely used in crime.

Continue reading "Supremes Act on US v. Stewart"

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Wash Po having trouble keeping it straight again

Posted by David Hardy · 12 June 2005 11:08 AM

Last week, the WaPo was editorializing against the gun mfr's liability bill:

"The measure's extreme nature was highlighted last week when Rep. Chris Van Hollen
(D-Md.) offered an amendment in committee to clarify as exempt from protection the situation in which "the seller knows that the name of the [gun buyer] appears" on the government's gang and terrorist watch list "and the person subsequently used the [gun] in the commission of a crime." Judiciary Committee Republicans voted the amendment down ... [claiming it was vague or redundant]"

This week the WaPo runs a major story on terrorism matters, answering the Bush Admin. claims to have made 400 terrorism arrests (not just watch list, arrests) with an argument that nearly nine-tenths of the defendants did not even have an allegation of a link to a terrorist group. It adds, with regard the watch list, that " large number of people appear to have been swept into U.S. counterterrorism investigations by chance -- through anonymous tips, suspicious circumstances or bad luck -- and have remained classified as terrorism defendants years after being cleared of connections to extremist groups." It quotes an official as saying "A person could not have been put on this list if there was not a concern about national security, at least initially," he said. "Are all these people an ongoing threat presently? Arguably not."

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Joyce Foundation at it again

Posted by David Hardy · 11 June 2005 12:50 PM

Editor and Publisher reports that newspapers in Iowa, Ohio and Nebraska (total circulation 5.8 million) have stopped running classified ads for guns, after all the newspapers in those states were petitioned to do so by "Iowans for the Prevention of Gun Violence." Iowans Against Gun Violence nows plans to expand its drive to all fifty states.

The Joyce connection? Joyce has for years been bankrolling Iowans Against Gun Violence and its drive to end classified ads. Here's the Joyce Foundation page on the project -- click on "Closing the newspaper loophole."

Joyce grantee, Iowans for the Prevention of Gun Violence (IPGV), has formed a coalition of state gun violence prevention advocates that are working to close the “newspaper loophole.” As part of their efforts, IPGV mailed letters last summer to 20 major newspapers across the country, asking them to stop accepting classified ads for guns. This initial request prompted the Chicago Tribune and the Philadelphia Inquirer to stop running gun ads. Follow-up letters convinced five metropolitan papers, including the Miami Herald, to change their gun ad policies.

Still more interesting according to its webpage, : Joyce pumped the "grassroots" Iowa group $250,000 in 2002 and the same sum in 2004. A check of IAGV's IRS reports, on guidestar.com, shows it reporting 2002 total contributions as $58,089 (a deficit) and 2003 (the latest) as $152,235. I assume the discrepancy is that the Joyce grants were spread over two years. In that event, however, it would appear that the "grassroots" group's entire contribution income and budget consists of the Joyce money. It is indeed a surrogate for the Foundation.

It appears to be one of many groups which are essentially Joyce Foundation surrogates (example: the Violence Policy Center, which got a million dollars in 2000, $800,000 in 2002, and $500,000 in 2003 and 2004).

My earlier posting on Joyce Foundation buying law reviews. Permalink · contemporary issues · Comments (0)

Genocide and arms

Posted by David Hardy · 10 June 2005 04:59 PM

Over at davelkopel.com, Dave has posted an interesting paper by himself, Paul Gallant, & Joanne D. Eisen. The title, "Is Resisting Genocide A Human Right?" sums up the subject matter.The paper is 47 singlespaced pages long, exploring genocide, arms and arms control, and treaties on the subject, and concludes:

In this Article, we have shown that, under existing international law, genocide victims are not obliged to wait for foreign governments or world organizations to rescue them. According to normative principles of international law and according to positive international law, genocide victims have a fundamental human right to use armed force to resist genocide. Because the prohibition of genocide is a preemptory jus cogens norm of international law, any local, national, or international laws or government actions which interfere with self-defense by genocide victims are necessarily unlawful. In particular, arms control laws which may be generally valid may not be enforced against genocide victims or against persons who supply arms to genocide victims; enforcement would make the enforcing court or other state agency complicit in genocide.
Accordingly, the Security Council 2005 arms embargo on Sudan may not lawfully be enforced so as to deny defensive arms to the genocide victims in Darfur. The new UN Protocol against firearms trafficking and manufacturing is equally inapplicable to arms acquisition by genocide victims, including the Darfur victims.
All future international small arms control treaties should explicitly recognize that the treaty does not (and, as a matter of existing international law, can not) apply so as to prevent genocide victims from acquiring and using defensive arms. Any interference—including interference under color of law—with the selfdefense rights of genocide victims constitutes a grave violation of the most fundamental of all international and moral laws.

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Am I the only one to see the incongruity here?

Posted by David Hardy · 9 June 2005 03:37 PM

The Sacramento Bee reports that (in the wake of the California Dep't of Justice backing some rather lamebrained ideas for putting serial numbers on cartridges), the Folsom Shooting Club refused to let on-duty DOJ officers shoot on its range, and "We're not questioning their right to do this, but who's next?" said Peter Hamm, a spokesman for the Brady Campaign to Prevent Gun Violence."

The Brady Campaign, complaining about lack of shooting opportunities? Isn't that a bit like the Womens' Christian Temperance Union hosting a kegger?

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Brady Campaign Shows True Colors

Posted by David Hardy · 2 June 2005 07:31 AM

Let's see... Brady Campaign is supposedly concerned about gun safety, and argues that gun locks are a great idea toward that end....

So Pennsylvania gets a federal grant, buys 610,000 gun locks, creates Operation ChildSafe, and offers them to its residents for free.

Brady's reaction? According to the Pittsburg Post-Gazette, " Eric Howard, a spokesman for the Brady Campaign to Prevent Gun Violence, said the burden should not be on government grants and taxpayers to promote gun safety."

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Army's novel idea: give them guns early!

Posted by David Hardy · 1 June 2005 03:34 PM

The Army has a novel idea--make recruits familiar with guns from the start, thereby reducing accidental discharges and increasing skill.

Continue reading "Army's novel idea: give them guns early!"

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Condi Rice, Larry King, and the transcript

Posted by David Hardy · 23 May 2005 12:59 PM

I previously posted regarding an anomaly in the appearance of Condi Rice on Larry King Live, May 11, 2005. The anomaly was also covered by Instapundit and Countertop.

The anomaly was that media reports of her interview prominently featured her position on the Second Amendment -- which was strongly pro, and mentioned that her father had stood off racist thugs with his gun, and if the local sheriff, the infamous Bull Conner, had had gun registration lists, it's obvious that would not have been possible -- yet the transcript of the show had no such passage. In fact, between two station breaks the transcript indicated that the interview switched to an interview of an actor, then back to her.

To settle the matter, I ordered a videotape of the show. Yes, it's all in there, together with her statement that the Second Amendment is as important as the First, and we don't get to pick and choose which rights we defend.

A further mystery, tho -- the show's transcript now DOES show the passage! (Search it for "gun control" to come to it).

The explanation which best fits known fact is that the transcribing firm (which is separate from the show) found the pro-Second Amendment discussion too shocking for their tastes, and took the liberty of deleting an entire station break to station break segment, and pasting in an interview, of an actor, from the previous day.

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Cornell Webpage on the Constitution

Posted by David Hardy · 22 May 2005 11:46 AM

The superb Cornell Univ. website (I subcribe to their email alert system, which emails you the syllabus of each Supreme Court ruling the day it comes out) has added a set of pages on the Constitution and Bill of Rights.

Checking out their Second Amendment page, I was pleased to find it as comprehensive as one might desire in such a page, and far more impartial than I had expected.

When matters are summed up with reasonable impartiality, though, a pattern emerges which seems unique to the Second Amendment. The vast bulk of serious legal scholarship goes one way, and the vast bulk of caselaw the other. I can't think of an area of law where you have this pattern, at least in a division this sharp and broad -- what does an amendment mean, rather than the fine details of its application to specific facts.

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Ed Suter on medical costs of gunshot injuries

Posted by David Hardy · 18 May 2005 01:28 PM

Some years ago the antis (led in part by the Joyce Fdn) created the approach of treating GSW as a medical issue, which had some PR benefits to their cause. Dr. Edgar Suter, chair of Doctors for Integrity in Public Research, has taken the lead in responding.

Here is Suter's response to an article along these lines, published in the Amer. J. of Preventative Medicine. Suter points out:

1. The article claims that millions are spent treating gunshot wounds ... but the sums mentioned are only 0.064% of America's total medical costs.

2. This is a 60% decline since the last such study (1993) despite millions of new firearms entering the market annually.

3. No one would attempt a cost-benefit analysis without considering benefits (here, lives saved by defensive uses). Estimates are that medical negligence kills about 180,000 Americans annually, after all, but this hardly proves that medicine is useless or doctors should be avoided, since presumably many times that number are saved.

Continue reading "Ed Suter on medical costs of gunshot injuries"

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Nationwide concealed carry for LEOS

Posted by David Hardy · 16 May 2005 09:10 AM

Congress recently passed a statute allowing nationwide concealed carry by qualified law enforcement officers. Here's my quick read of what the law allows....

Continue reading "Nationwide concealed carry for LEOS"

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Judges packing

Posted by David Hardy · 15 May 2005 11:18 AM

From Janie (Mrs. Sheriff) Printz -- a news story on how, in the wake of the Atlanta courthouse shootings, judges have done the logical thing and started packing heat on the bench.

Continue reading "Judges packing"

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Amusing satire on collective rights view

Posted by David Hardy · 14 May 2005 03:36 PM

Rand Simberg does a good job of reducing collective rights to absurdity. The Framers lived in a time when printing presses were rare, and only responsible people owned them; they could not have foreseen the internet, which allows virtually anyone to spew out misleading ideas, to the entire world, at thousands of words a second.

(Actually, one could make a still stronger historical argument. Until 1695, you had to have a goverment permit to publish a book on politics; in the early 1800s, a Congress that included some Framers enacted the Alien and Sedition Acts, that allowed prosecution of any person who made false and defamatory statements about the Congress or the President).

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Dave Kopel on the right to arms and the Black experience

Posted by David Hardy · 13 May 2005 05:14 PM

Reason Online has an article by Dave Kopel covering the Black experience and the right to arms during the early 20th century. RO has also just released a very interesting set of articles by Don Kates, Abigail Kohn (anthropologist and author of "Shooters") and Michael Krause.

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Larry King "blips out" Condi Rice on the right to arms?

Posted by David Hardy · 12 May 2005 11:46 AM

A bit of an anomaly: She was on Larry King Live yesterday, and the AP report sums it up:

"Secretary of State Condoleezza Rice, recalling how her father took up arms to defend fellow blacks from racist whites in the segregated South, said Wednesday the constitutional right of Americans to own guns is as important as their rights to free speech and religion.

In an interview on CNN's "Larry King Live," Rice said she came to that view from personal experience. She said her father, a black minister, and his friends armed themselves to defended the black community in Birmingham, Ala., against the White Knight Riders in 1962 and 1963. She said if local authorities had had lists of registered weapons, she did not think her father and other blacks would have been able to defend themselves."

But the transcript from LKL show doesn't show any of that. What's up here?

Continue reading "Larry King "blips out" Condi Rice on the right to arms?"

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My anti-Michael Moore book out in paperback

Posted by David Hardy · 10 May 2005 01:47 PM

"Michael Moore Is A Big Fat Stupid White Man," by Jason Clarke and myself, went to paperback today and is available on Amazon for a little over ten bucks. The hardback spent six weeks on the NY Times bestseller list, and sold 82,000 copiesin 2004, not to mention being translated into Japanese; we'll see if the paperback does as well.

The largest chapter in the book is spent defending NRA and Charleton Heston against Moore's slanders in "Bowling for Columbine," a movie which won the Oscar. So far as I know, it's the first pro-NRA book to hit the bestseller list. The paperback is really a second edition, with two large chapters devoted to his movie "Fahrenheit 9/11."

Here's the link to get to Amazon.

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Comment on Bach v. Pataki

Posted by David Hardy · 9 May 2005 02:15 PM

Just below, I discuss Bach v. Pataki, the recent 2d Circuit case. Robert J. Cottrol, Harold Paul Green Research Professor of Law at George Washington University, just emailed an interesting comment:

I got a chance to glance at Beck v. Pataki (only the second amendment section). I may be over optimistic but I think it represents a bit of progress. You have the district court saying that the second amendment is a collective right. You have the second circuit essentially pulling back from that and saying that it is an open question that they do not have to resolve and instead saying that their consideration of the matter is essentially precluded by the incorporation issue. Furthermore the second circuit (which is not a particularly friendly circuit) says that Presser may indeed be problematic precedent but that they are nonetheless bound by it (taking pains to distinquish Engbloom, their third amendment case, noting that the Supremes had not spoken on the third amendment and incorporation). It seems this is a far cry from the district court's claim that the second amendment protects only militias. It is also a far cry from the majority decision in Silveira and what a number of the lower federal courts were doing in the 70s and 80s. I regard this and the DC case (ignoring the second amendment and coming up with a trumped up standing standard) as small (don't break out the champagne just yet) steps forward.

I'd quite agree. In the 1980s, the 2d Circuit easily waved the Second Amendment away. For example, in U.S. v Toner, 728 F.2d 115 (2nd Cir. 1984), an equal protection question was raised with regard to the Gun Control Act's ban on possession by illegal aliens, and the Circuit disposed of the "fundamental right" criterion (if a fundamental right is involved, a court must use a higher level of scrutiny in determining whether equal protection has been violated) with a sentence: "....the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "Some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon)..."

Today, the Circuit has to spend a lot of time hedging, and it declines the obvious opportunity simply to adopt the district court ruling. This suggests it sees the Second Amendment question as up in the air rather than settled.

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Bach v. Pataki (2d Circuit)

Posted by David Hardy · 6 May 2005 01:39 PM

Crime & Federalism reports a new Second Circuit decision on New York's gun permit system.

Appellant Bach is a Virginia resident, described by the court as a "model citizen," who would like to have a New York permit, for self-protection while visiting his parents. He is perfectly willing to apply, but the New York law says permits may only be issued to residents or persons whose principal employment is in New York.

He challenged on Second/Fourteenth Amendment grounds, and the Second Circuit dumped that on the grounds that the last Supreme Court case on it (in the 19th century) held that the Second Amendment is not incorporated into the Bill of Rights, and if that's going to be changed, it will have to be done by the Supreme Court. (For non-legal types: the Court in 1833 held that the federal Bill of Rights only restricts the federal government. The 14th Amendment, 1868, forbids states to deprive persons of the privileges and immunities of federal citizenship, or of due process. When the Court finds that a federal bill of rights liberty cannot be denied by a state without denying due process, the right is said to be "incorporated" into the 14th Amendment).

Of more novelty, he challenged it under the Privileges and Immunities Clause of Article 4 (i.e., not that of the 14th Amendment) which provides that the citizens of each state shall be accorded the P&I of citizens in the several states. (I wondered why there is no Equal Protection challenge -- this is a variant on that). After all, New York creates a permit system and then forbids residents of other states to apply unless their principal business is in NY. Plainly it's giving its own citizens a right that is not allowed to citizens of other States. The court dumps that by saying that the NY scheme is organized locally, so officials have to be able to monitor people locally.

My take: that's not a terribly good argument. After all, a nonresident can still apply IF his principal occupation is in NY (lots of residents of NJ and PA work in NY). A resident of NJ can apply if he works in NY, but not if he doesn't. The court appears to argue that a person working in NY spends a substantial amount of time there, and thus can be monitored.

The argument proves too much and too little. A person lives in NJ -- sorry, no chance to monitor him locally. Unless he works in NY (whether or not be takes a gun to work). And if "monitoring" a fellow only during work hours is sufficient ... then why can they license people who work in NJ, so long as they live in NY? As a practical matter, NY authorities are not "monitoring" anyone, in the sense of following them around, so it amounts to not much more than "if he got into trouble, we'd know about it automatically." That's improbable in the case of a nonresident who only is in their jurisdiction 9-5, M-F.

I rather suspect that if something other than firearms were involved -- say, a State law allowing only residents to apply for certain professions, or refusing to recognize out of state drivers' licenses *and* allowing only residents to apply for an in-state one, since the state has to monitor driving or professional performance -- the result would have been judicial outrage at the discrimination against non-residents.

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Brady Campaign runs afoul of the law ... again

Posted by David Hardy · 6 May 2005 07:05 AM

(Via Michelle Malkin: AP reports that the Federal Election Commission has assessed a $12,000 penalty against the Brady Campaign.

A couple of years ago, Brady was assessed $26,000 for violating the campaign reporting rules.

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Light blogging today

Posted by David Hardy · 5 May 2005 11:46 AM

I'll be light on posting, since a British documentary crew is filming me regarding the Waco tragedy. For my views on that, see my webpage on the issue. (It took three years of Freedom of Information Act suits to get the data, by the way).

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More on the Joyce Foundation

Posted by David Hardy · 3 May 2005 09:15 PM

Looking over the Joyce Foundation's webpage on its grants, it's apparent that it's investing SERIOUS cash, as in millions, in promoting the anti-Second Amendment agenda. Its investments range from public relations, to funding lobbying groups, to working on the entertainment industry, to financing publications on the constitutional issues. And some serious cash is being spent. Samples:

Legal Community Against Violence
San Francisco, CA $380,000
For general support. (2 yrs.)

National Opinion Research Center
Chicago, IL $39,499
To add a selection of gun-related questions to its 2006 General Social Survey. (2 yrs.)

Consumer Federation of America
Washington, DC $75,000
To educate the public and policy makers about the public health and safety impact of failing to regulate guns, particularly assault weapons, as consumer products. (9 mos.)

Entertainment Industries Council, Inc.
Reston, VA $125,000
To work with the entertainment community to accurately and responsibly address gun violence on television. (18 mos.)

Illinois Council Against Handgun Violence
Chicago, IL $300,000
To create a new network of state-based gun violence prevention groups. (1 yr.)

Illinois Council Against Handgun Violence
Chicago, IL $400,000
To educate the public about the risks of guns in the home and to enhance its media and communications presence (including on the Internet), its statewide organizing, and coalition building, and its funding and membership base. (1 yr.)

Ohio State University Foundation
John Glenn Institute for Public Service & Public Policy
Columbus, OH $125,000
To host a symposium at Stanford Law School on the connections between the Second Amendment and the Fourteenth Amendment, to publish papers in a major law review, and disseminate findings via the Web. (2 yrs.)

Violence Policy Center
Washington, DC $500,000
To provide research and technical assistance to Midwest-based gun violence prevention advocates. (1 yr.)

WAVE Educational Fund
Milwaukee, WI $250,000
To educate the public about the risks of guns in the home and to enhance its media and communications presence (including on the Internet), its statewide organizing, and coalition building, and its funding and membership base. (1 yr.)

New York Academy of Medicine
New York, NY $100,000
For its program Doctors Against Handgun Injury supporting a coalition of national medical societies to promote public health-oriented gun policies and practices. (2 yrs.)

Ohio Coalition Against Gun Violence
Toledo, OH $150,000
For general support, including state and federal policy advocacy to prevent gun violence. (21 mos.)

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Law prof's take on Florida law

Posted by David Hardy · 2 May 2005 11:57 AM

FindLaw has a Brooklyn law prof's take on the new Florida law. He agrees that in abolishing retreat Florida is just going with the trend, although he has big problems with the way it treats as justified any killing that occurs while the aggressor is forcibly and unlawfully entering a house or car (his argument being that at least one legislative report describes this as an irrebuttable presumption that the aggressor intended to kill). Thanks to Stop The Bleating,, who's temporarily unable to blog due to laptop failure.

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Atlanta papers on Florida no-retreat law

Posted by David Hardy · 2 May 2005 08:11 AM

Below I'd noted that Florida newspapers covering that state's recent self-defense law seemed strangely ... evenhanded. They actually reported what the law did (remove the requirement of "retreat" for self-defense outside the home, while still requiring that a person reasonably believe they were in danger of death or serious injury due to attack, and recognize a presumption that one is in such danger if the attacker is an intruder into the person's home), and gave both sides of the issue.

Now the Atlanta Journal-Constitution brings back memories of what press coverage of gun issues was like in the bad old days. "Florida has ignored common sense and public safety by adopting a law that encourages violent confrontations between its residents. Worse still, the National Rifle Association is gleefully planning to lobby for similar changes in other states," it writes. The law will worsen the State's "gunslinger environment" (under which the homicide rate has steeply fallen). It "limits the ability of police to arrest whoever claims self-defense." (No kidding; laws which establish defenses to criminal charges generally have that effect). And ends with "Let's hope the NRA shoots another blank if it tries to introduce Florida's recipe for mayhem to Georgia."

Now THAT's the press coverage we're accustomed to seeing!

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Tennessee House leadership discards the rules

Posted by David Hardy · 29 April 2005 02:36 PM

Giving Up and Giving In reports on how the Tennessee House leadership killed (or further delayed) a pro-gun bill.

The measure had been reported out of committee and set for a floor vote. A motion was made to instead refer it back to the committee. Several members objected, so the Speaker simply ruled them out of order and proclaimed the motion had passed without objection (hence no need to take a vote).

Continue reading "Tennessee House leadership discards the rules"

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Brady Campaign's questionable tax reporting

Posted by David Hardy · 29 April 2005 01:37 PM

From the Public Citizen's webpage on "stealth PACs":

"The group lists the election of pro-gun-control officials among its objectives.2 During the 2002 election cycle, the Brady Campaign disseminated communications involving at least three political contests.3
In the Michigan congressional primary pitting Democratic Reps. John Dingell and Lynn Rivers, the Brady Campaign spent a reported $18,000 on a radio ad attacking Dingell’s gun safety record. ... The Brady Campaign and Million Moms March also launched an anti-gun, anti-Dingell Web site during the campaign, www.DingellandGuns.com.4

In 2002, the Brady Campaign also ran ads attacking Maryland Republican gubernatorial candidate Bob Ehrlich5 and distributed direct mail and telemarketing messages favoring Missouri Democratic Sen. Jean Carnahan in her failed bid for re-election.6

The group reported to the IRS that it had zero political expenditures in each year from 2000 to 2002. 7 In effect, the group claimed that none of its communications were intended to influence the outcomes of elections.8
In 2003, the Brady Campaign's PAC was fined $26,000 by the Federal Election Commission for failing to properly disclose $200,000 it spent on mailings in 2000 opposing two Republican House candidates, Reps. Ernest Fletcher (R-Ky.) and Pat Toomey (R-Pa.).9

It looks as if the Million Moms March may have had similar problems with its tax status.

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Armed pilots

Posted by David Hardy · 28 April 2005 12:28 PM

Times magazine has an interesting article on armed airline pilots, noting that they are now making more flights than are air marshals!

In his state of the union address, President Bush singled out federal air marshals—undercover armed agents who fly on U.S. airlines—for helping make "our homeland safer." But he neglected to mention a flying security force that has quietly grown even larger than the marshals: the nation's pilots. Two years ago, the Federal Flight Deck Officer program began training pilots who wanted to carry guns on flights to protect the cockpit.

Aviation sources tell Time that more than 4,000 pilots are authorized to carry guns, and each day they fly armed on more flights than do air marshals. The gun-toting pilots, who fly unidentified, now constitute the fourth-largest federal law-enforcement group in the U.S. Pilots in the program, as well as the Transportation Security Administration (tsa), which runs it, claim it has been a big success.

Rather humorous, considering the massive TSA resistance to the idea when it first came up. Here's a recent (yesterday's Congressional Quarterly) story on how it's still resisting....

Continue reading "Armed pilots"

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Jeb Bush signs "no retreat" into FLA law

Posted by David Hardy · 27 April 2005 07:26 AM

Jeb Bush just signed into law the Florida no-retreat bill, which provides that a person need not retreat from an attack, may "stand his ground" and use deadly force if he reasonably believes he or another person is threatened by death or serious physical injury. (The retreat requirement imposes a restriction on self-defense: in addition to a threat of death or serious injury, the defender had to show they had tried to retreat, or that retreat exposed them to greater danger. Court decisions had already removed that requirement within the defender's home or business).

What's remarkable is the press coverage. It's ... actually pretty balanced. Am I the only one noticing a certain change from the days 10-20-30 years ago, when Brady Campaign or Nat'l Coalition to Ban Handguns could make any claim it wanted and have it favorably reported (Forget having their press releases reprinted as news stories: there was one hiliarious case where it went the other way, an AP story was so one-sided that one gun control group cut-and-pasted it to make it their press release).

Here's a summary of some news articles, relayed by Marion Hammer.

Continue reading "Jeb Bush signs "no retreat" into FLA law"

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Supreme Court rules that foreign convictions do not make a "felon"

Posted by David Hardy · 26 April 2005 09:37 AM

The Supreme Court this morning ruled that a foreign conviction does not turn the defendant into a "prohibited person" within the meaning of the Gun Control Act.

Continue reading "Supreme Court rules that foreign convictions do not make a "felon""

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An armed society is a polite society; a disarmed society is....

Posted by David Hardy · 26 April 2005 08:58 AM

From The Guardian:

In one video clip, labelled Bitch Slap, a youth approaches a woman at a bus stop and punches her in the face. In another, Knockout Punch, a group of boys wearing uniforms are shown leading another boy across an unidentified school playground before flooring him with a single blow to the head.
In a third, Bank Job, a teenager is seen assaulting a hole-in-the-wall customer while another youth grabs the money he has just withdrawn from the cash machine.

Welcome to the disturbing world of the "happy slappers" - a youth craze in which groups of teenagers armed with camera phones slap or mug unsuspecting children or passersby while capturing the attacks on 3g technology.

According to police and anti-bullying organisations, the fad, which began as a craze on the UK garage music scene before catching on in school playgrounds across the capital last autumn, is now a nationwide phenomenon.
And as the craze has spread from London to the home counties to the north of England, so the attacks have become more menacing, with increasing numbers of violent assaults and adult victims......

UPDATE: here's a webpage with those wonderful videos of guys beating up people while recording the action for uploading.

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NY Time: end of "assault gun ban" meaningless

Posted by David Hardy · 24 April 2005 11:43 AM

(Via Instapundit) The N.Y. Times acknowledges the expiration of the assault gun ban has had no effect.

Despite dire predictions that the streets would be awash in military-style guns, the expiration of the decade-long assault weapons ban last September has not set off a sustained surge in the weapons' sales, gun makers and sellers say. It also has not caused any noticeable increase in gun crime in the past seven months, according to several metropolitan police departments.

Of course, the Times has to claim that the reason the ban was meaningless was that it was too "porous." Hard to reconcile with its admission that assault weapons "were never used in many gun crimes" and "Assault weapons account for a small fraction of gun crimes: about 2 percent, according to most studies, and no more than 8 percent."

Continue reading "NY Time: end of "assault gun ban" meaningless"

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NRA President Sandy Froman on ABC World News Tonight

Posted by David Hardy · 22 April 2005 09:46 AM

The title says it all. I'm sure it'll go well--she's a trial attorney by trade.

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More on Joyce Foundation buying a law review

Posted by David Hardy · 19 April 2005 09:19 AM

Below, I posted with regard Joyce Foundation underwriting an issue of Forham Law Review, for the apparent purpose of generating anti-individual rights articles. Saul Cornell, organizer of the event, replied, via the Volokh Conspiracy, that he had tried to enlist Prof. Nick Johnson and others to give an individual rights view, but they withdrew.

I made an inquiry to Nick Johnson, and he replied as follows:

Interesting. The moderator of the Law Review, Prof. James Fleming will verify that I complained quite loudly about the lack of balance of the proposed panels, and suggested a long list of names who should be considered to add balance. After several overtures to Cornell by Fleming as intermediary, I withdrew from the panel in protest of the onesidedness of the affair.
Also, nearly a year before the event, the Law Review asked and I agreed to present and write for one of the panels. As the event approached, I was relegated to a "commentator" on the Dorf Panel. I
viewed it as an act of bad faith and said so at the time. At the time I withdrew I was the only "standard modeler" in the show. After I withdrew, Cornell asked Cottrol (though he had rejected him as an addition to the panel when I proposed it earlier). After that, he got Ray Diamond. My sense was he was looking only for a token showing. But not any real debate.

All of this is well documented in emails to the Law Review, Fleming (the Law Review Moderator) and our Dean.

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Back from NRA convention

Posted by David Hardy · 19 April 2005 08:32 AM

Didn't have a chance to blog on the run--too dang busy! Estimates were that 60,000 people showed up.

The DeLay speech at the dinner was rather lively. Protestors were... well, it was rather strange.

One protestor showed up in the morning. She had a pink wig and a sign calling for impeachment of Pres. Bush. She told me she had nothing against NRA, agreed with most of its positions, just thought Bush was undermining civil liberties. When I mentioned that to some NRA exhibitors standing in line, one responded "I agree with her--the Patriot Act is unconstitutional as hell!" A couple of mounted police started moving up behind her, nothing terribly close, altho I suspect they were hinting she should move on. She started shouting that she'd done nothing, why were they after her?

Afternon Saturday there were 2-3 protestors outside. Plus one Libertarian trying to recruit. I talked to a couple of them. One just wanted people to use trigger locks, another kept talking about Christianity and how there's too much violence. Neither were from Brady or Million Moms, and had heard nothing about them showing up.

During the DeLay speech there WERE a lot of protestors, hundreds, but they were chanting "Keep your guns, dump DeLay!" It was strange to see protestors who weren't protesting what was going on.

Listened to Ted Nugent in concert -- it was pretty wild. He did things to the Star-Spangled Banner that I didn't know could be done. But I did wish I'd brought hearing protection!

In the mail balloting for directors, Tom Selleck came in No. 1 and Zell Miller No. 2. The problem is that as a consequence, several long term directors (on the board for years and in some cases decades) didn't make the cut. I personally thing a *few* celebs are good, but the count should be kept low; the cost of losing dedicated people, their experience, and their institutional memory is far too high. Most of the Board's business doesn't actually involve national politics (there are the committees that watch over various types of sport shooting, deal with shooting range problems, urban issues, women's issues, finance, etc), where celebrities have no knowledge, and even the national issues are often complex and require long term knowledge.

The directors did comment on how quickly Selleck could handle a photo op! He's obviously accustomed to having a lot of people wanting their pic taken with him when he has other things that need doing. Strike the pose, get the pic, and get moving!

As expected, Sandy Froman, a lady attorney here in Tucson, was elected President. She's a fireball of energy and has a bunch of things she wants done.

I greatly love Houston, by the way. The attitude is just great. You want to jaywalk? Just don't get hit. I figured that out after seeing people do it with an officer standing next to them. Another officer would just gesture to people to stop jaywalking when he saw a car coming. Outside the board meeting, I asked an officer if smoking was permitted in the hotel. He replied "No, but nobody's looking."

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Howard Dean on the gun issue

Posted by David Hardy · 11 April 2005 06:28 PM

Thus spake the chairman of the DNC:

"I was a governor who balanced eight budgets in a row, which is eight more than the Republicans, and I was a governor who was endorsed every year by the National Rifle Association."

Guns, Dean predicted, would never come up - either pro or con - in his 50-state survey of what the Democratic message should be.

"Guns aren't an issue," he said. "If Philadelphia wants gun control, fine. If Alabama doesn't, also fine."

As the 60's song went....You don't have to be a weatherman to know which the wind is blowing....

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Seegers challenge to DC law

Posted by David Hardy · 9 April 2005 09:15 PM

Steve Halbrook's motion for rehearing in the Seegers case is online here in .pdf.
The DC Circuit had held his appellants had no "standing" to challenge the DC gun law since they were not being prosecuted and had not show a realistic threat of prosecution (which requires a lot more than the fact that it's against the law).

I've said before that the funny thing about standing is that if the courts like cases of your type you almost always have it, and if they don't, you don't. I suppose there is some deep legal reason for that strange coincidence, but I haven't yet discerned it.

Steve makes the points that applying the standing requirement in this way essentially cuts off law-abiding citizens from the courts, and that courts should encourage citizens to work out legal issues through the legal system rather than telling them to go out and break the law if they want a ruling.

Makes sense to me, altho I suspect the DC Circuit won't change its mind. Standing is a very convenient "dump button" to avoid ruling in a case where the result might be undesirable to the court.

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Saul Cornell responds re: Joyce Fdn buying law reviews

Posted by David Hardy · 8 April 2005 11:03 AM

Below I noted the Joyce Foundation had made a "generous grant" to Fordham Univ. Law Review to create a Second Amendment symposium issue, in which there was not a single noteworthy pro-individual rights author, and said they were back at it again -- a few years ago they made a hefty grant to Chicago-Kent Law Review to publish a symposium issue, which brought in Carl Bogus ( a former member of the Board of Handgun Control, Inc.) as an outside editor, and from which review pro-Second Amendment writers were excluded.

Saul Cornell has replied, via the Volokh conspiracy, saying that these are baseless claims. The response is not much more than a claim that he did try to get some individual rights authors, and one article was pro-individual rights. Not that one article in an entire symposium makes for balance, of course. It's not like there weren't candidates for articles. There's no word of his having bothered to reach, oh, Robert Cottrol, Glenn Reynolds, Wm. van Alstyne, Randy Barnett, Gene Volokh, Don Kates. [In a subsequent post, Cornell states that he did try to get van Alstyne].

What is revealing is that, once again, the law review that gets the generous Joyce grant pulls in an outsider to manage that issue of the review. And the outsider happens to be a fellow who is very much on the anti-individual right side.

Update:You must, of course, apply to Joyce for a grant. And its standards make it clear that the project -- or in this case law review -- is expected to advance the enactment of gun legislation (buzzword = "policy").

From its webpage on its grant priorities:

The Gun Violence Program supports efforts to bring the firearms industry under comprehensive consumer product health and safety oversight as the most promising long-term strategy for reducing deaths and injuries from handguns and other firearms.
Program priorities are:

• Supporting state-based policy initiatives in Illinois and Wisconsin that can achieve meaningful reforms and provide a model for gun policy nationwide ....
• Supporting focused research to inform state policy efforts.

From its grant FAQ,

Do you fund educational programs in violence prevention? We generally do not fund such programs.
....

Do you fund research? We fund research that is likely to have a strong impact on public policy.

.....
Please tell me more about your focus on public policy. We focus our grantmaking on initiatives that promise to have an influence on public policies. That includes advancing the public debate about important policy issues, most notably the need for federal consumer product health and safety standards for the firearm industry. We believe such policy initiatives can lead to broad, systemic changes that affect the most people over the long run.

In other words: don't come to us with a law review that will explore the Second Amendment. Come to us with an idea for one that will help enact gun laws. That is what we fund.

For anyone who's interested ... I found some interesting notes on Joyce Foundation's funding of the Chicago Kent issue...

Continue reading "Saul Cornell responds re: Joyce Fdn buying law reviews"

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Starting off the day with a chuckle

Posted by David Hardy · 8 April 2005 09:48 AM

The United Dairy Farmers' chain of stores in Ohio last week posted signs stating that no firearms were allowed. And promptly got robbed five times.

Continue reading "Starting off the day with a chuckle"

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Joyce Foundation

Posted by David Hardy · 7 April 2005 12:09 PM

Geek with a .45 has an indepth posting on the Joyce Foundation's antigun efforts.

As I note below, these folks are far more anti-Second Amendment than the Brady Campaign, and have about $653 million to spread around.

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Fifth Circuit continues to take Second Amendment seriously

Posted by David Hardy · 6 April 2005 04:12 PM

In United States v. Everist, 368 F.3d 517 (5th Cir. 2004), the issue was a challenge to the Federal bar on felons in possession. The Circuit, citing its earlier ruling in Emerson, upheld the bar, noting:

The Second Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id . at 261. It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.
Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens. See id. (noting that "it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"). Accordingly, § 922(g)(1) represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.*fn1 Everist's constitutional challenge to § 922(g)(1) fails.*fn2

*fn1 We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains certain that the federal government may not restrain the freedom to bear arms based on mere whimsy or convenience. See Emerson , 270 F.3d at 261.

Continue reading "Fifth Circuit continues to take Second Amendment seriously"

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Joyce Foundation

Posted by David Hardy · 3 April 2005 02:32 PM

Just saw a note that the Fordham Univ. Law Review is coming out with a symposium issue on the Second Amendment -- strangely, without a single recognizable pro-individual rights author (and almost without recognizable authors at all).

Aha, thought I -- is the Joyce Foundation at it again? Sure enough, a Google quickly turned this up: "The papers and commentaries presented at the conference will be published in the Fordham Law Review in Fall 2004. The conference was funded by a generous grant from The Joyce Foundation."

Why would I say Joyce is at it again? Well, in 2000 Chicago-Kent Law Review issued a similar symposium issue. A bit of inquiry found ... well, let me give you background first. Law reviews are run on a shoestring. They're edited by students themselves, and very proud of that tradition. Editors get paid a pittance (I got $600 a year back in 1975), and authors of articles never, never, get paid.

A bit of inquiry showed that Joyce had done some serious bankrolling. The law review consented to having an outside editor for that issue, who surprisingly was anti-Second Amendment. (And when pro-Second Amendment law professors volunteered to write, he refused to allow it). He got paid $30,000. Authors of the articles in it got $5,000 each for their time. The rest of the grant went for buying a load of reprints to be sent to judges. So Joyce had essentially bought a issue of the review, stacked the deck of authors, and then mailed a load of copies to judges.

Recently there was an interesting article in the NY Post on how an official of the Pew Charitable Trusts was caught on video explaining how the Trusts had invested millions in campaign finance reform. He explained:

Treglia came up with a three-pronged strategy: 1) pursue an expansive agenda through incremental reforms, 2) pay for a handful of "experts" all over the country with foundation money and 3) create fake business, minority and religious groups to pound the table for reform.
"The target audience for all this activity was 535 people in Washington," Treglia says — 100 in the Senate, 435 in the House. "The idea was to create an impression that a mass movement was afoot — that everywhere they looked, in academic institutions, in the business community, in religious groups, in ethnic groups, everywhere, people were talking about reform."

Sounds like Joyce has the act down pat. Use millions to bankroll supposed experts, create fake groups (more on this in extended remarks), and pursue a broad agenda through supposedly modest and incremental measures. And when I say millions ....

Continue reading "Joyce Foundation"

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Standing to challenge DC gun ban

Posted by David Hardy · 1 April 2005 11:31 AM

An interesting article by Alan Gura and Bob Levy in the American Spectator, on standing to sue and the challenges to the DC gun ban.

Continue reading "Standing to challenge DC gun ban"

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