TriggerFinger


We'll always have Paris...

... or so goes the line, anyway.  If the Islamists have their way, we won't have Paris any longer; they will have burned it to the ground.  The media are trying to avoid reporting facts about the situation.  But the facts that the blogosphere can put together sound like organized guerilla warfare, not rioting; and there was a very, very telling quotation from NPR that I heard on the way home today.  Obviously I don't have the actual quote, so I'm working from memory here.  But the commenter -- who spoke English with a moderate accent and clearly identified with the rioters strongly, to the point of using "we" more than once -- described the motivation behind the rioting as:
"Maybe, in order to get people to listen, we have to scare people.  Nothing is being done about [the problems].  If people are scared maybe they will do something."
Again, that's paraphrased from memory, but I was very shocked that it was stated that boldly, and so I am quite confident that the meaning of the statement has been preserved. 

Ladies and gentleman, what is happening in Paris is the textbook definition of terrorism.

Violence against innocents in support of a political goal.

Mon Nov 07 18:41:51 CST 2005 by TriggerFinger. Comments [Tweet]

Alito on the 2nd, redux

Publicola questions Alito's stance on the 2nd, saying that we don't really have any positive evidence for it.  He's right, in a way: we don't have anything concrete.  But I think the implications line up in the right direction, and I am cautiously optimistic, whereas with Miers there was simply no basis to draw any positive conclusions at all.

At any rate, I tried to leave a comment on the article, and it failed.  Sigh.  So here's my comment:

I guess you missed my take on this question.  It's true that Alito was silent on the 2nd Amendment question, and this does not necessarily bode well.  However, it's my considered opinion that the Supreme Court is going to need to be where 2nd Amendment cases start winning; there is so much established precedent against that most judges probably figure the Supreme Court would have corrected it if it was wrong.

The interesting firearms cases recently (Rybar, Lopez, Emerson, Bean, etc) have mostly, but not entirely, arisen from other considerations -- due process or commerce clause limitations.  Pure 2nd-Amendment challenges are routinely dismissed or ignored and no one much cares.  Remember the (priest? deacon?) who kept making machineguns and mailing them to the local prosecutor?  He had to force a prosecution by showing up on the steps of city hall with his gun -- which was unloaded, and his visit pre-announced -- and the courts cheerfully locked him up.  Nobody in government wanted a real 2nd Amendment test case before Rehnquist's court..

In the case of Rybar, Alito's commentary about congressional findings can be taken directly from the Supreme Court's US v Lopez precedent.  He's not doing anything more than channeling the Supreme Court there. 

You are correct that this doesn't necessarily tell us how he would rule on the Supreme Court -- but we know that he will not be looking for excuses to rule against us.  And while he values precedent, on the Supreme Court he will be looking at US v Miller (hopefully, with an enlightened understanding) and other Supreme Court cases, and asking why the lower courts have not followed clearly applicable precedent.

So, no, Alito is not a clear slam-dunk on the 2nd.  But I believe that he will reach the right conclusion given his judicial philosophy and an appropriate case.

Short of nominating Kozinski or Cummings, we're not likely to get a judge with a favorable 2nd Amendment record.  They just don't exist.

Sun Nov 06 18:22:04 CST 2005 by TriggerFinger. Comments [Tweet]

Patterico analyzes two of Alito's cases

On the case of the strip-searched child, he thinks the legal issues are narrower than the media complaints, and he's got some good points.  And on Alito's dissent in Planned Parent v Casey (written before the Supreme Court ruling on that same case), he has an antidote for the likely tactics of the left: Alito was defending a notification provision, not a consent provision. 

I have absolutely no objections to a requirement for married women to notify their husbands before obtaining an abortion, given that there are appropriate exceptions -- such as abuse, death of the spouse, etc.  And the law had such exceptions.

Sun Nov 06 09:48:11 CST 2005 by TriggerFinger. Comments [Tweet]

Gun Owners of America are happy with Alito..

GOA wants to thank all of you who contacted the President recently and suggested that he appoint a strong constitutionalist like Samuel Alito, Jr., to the Supreme Court. As you know, Judge Alito (from the Third Circuit) has a strong record in support of the Constitution. Gun Owners Foundation was involved in the Rybar machine gun case which we ultimately lost in the courts.   But Judge Alito offered a strong dissenting opinion to the majority report and argued that Congress has no right to regulate the private possession of machine guns. 

The nomination of Alito is going to drive the other side crazy.  Good. Judge Alito is a tremendous choice, and GOA will be asking you in the future to lobby your two U.S. Senators in favor of this pick.

Why wait?  The first hurdle is the Senate Judiciary Committee.  Although the Republican leadership have kept Specter, the chairman of said committee, on a short leash since his initial intemperate remarks, it can't hurt to tell the Senators on that committee your views.  Particularly if you are a constituent, and particularly if the Senator in question might not be inclined to give his full support to Alito.  That means Republicans likely to squish, and Democrats tempted to filibuster, need to be notified that people are watching their votes on this issue, along with their treatment of the nominee. 

The process starts in the Judiciary Committee, which has scheduled hearings beginning January 9th on Alito's confirmation.  Each Senator on that committee will have the opportunity to question Alito on issues of concern to them and to the nation.  The questions should be hard, because the job of Supreme Court Justice is not a trivial one.  But they should be polite, free of personal attacks, and focused on matters that are properly the concern of the judiciary. 

So let them know you are watching:

Arlen Specter
CHAIRMAN, PENNSYLVANIA

Orrin G. Hatch
UTAH
Patrick J. Leahy
RANKING DEMOCRATIC MEMBER, VERMONT
Charles E. Grassley
IOWA
Edward M. Kennedy
MASSACHUSETTS
Jon Kyl
ARIZONA
Joseph R. Biden, Jr.
DELAWARE
Mike DeWine
OHIO
Herbert Kohl
WISCONSIN
Jeff Sessions
ALABAMA
Dianne Feinstein
CALIFORNIA
Lindsey Graham
SOUTH CAROLINA
Russell D. Feingold
WISCONSIN
John Cornyn
TEXAS
Charles E. Schumer
NEW YORK
Sam Brownback
KANSAS
Richard J. Durbin
ILLINOIS
Tom Coburn
OKLAHOMA

Sat Nov 05 14:30:43 CST 2005 by TriggerFinger. Comments [Tweet]

Bill Quick misses the point...

... he's complaining about the Online Freedom of Speech Act failing to pass, and calling it a "love pat" from Bush.  The only problem with this premise is that 2/3rds of the Republicans in the House voted for the bill, and 2/3rds of the Democrats in the House voted against.  How that translates into blaming Bush I have no idea.

Sat Nov 05 09:39:58 CST 2005 by TriggerFinger. Comments [Tweet]

I wonder how common this is?

Did you think government was about solving problems?  No.  Government is about getting votes, even if it means creating a problem to pretend to solve.

Sat Nov 05 07:25:08 CST 2005 by TriggerFinger. Comments [Tweet]

House passes eminent domain bill...

Contending that the Supreme Court has undermined a pillar of American society, the sanctity of the home, the House overwhelmingly approved a bill Thursday to block the court-approved seizure of private property for use by developers.

The bill, passed 376-38, would withhold federal money from state and local governments that use powers of eminent domain to force businesses and homeowners to give up their property for commercial uses.

The bill would deny federal funds for 2 years to those who abuse eminent domain.  That's about all that the federal government can readily do; eminent domain is usually used by state and local governments. 

Fri Nov 04 19:15:51 CST 2005 by TriggerFinger. Comments [Tweet]

Please welcome...

... the Carnival of Cordite, once again!

Fri Nov 04 19:06:09 CST 2005 by TriggerFinger. Comments [Tweet]

House fails to pass the Online Freedom of Speech Act

The Act, which would have defined the types of communication regulated by the McCain-Feingold Incumbent Protection Act to exclude the Internet, failed to pass the House.  Because the bill was brought under suspension of normal rules it required a 2/3rds vote to pass (225-182). 

It is very depressing to realize that nearly two hundred elected Representatives can't read the Constitution.

The bill will likely be back under a more normal process requiring a simple majority vote.  However, NPR suggested that such a process would leave it open to amendment, so bringing the bill back comes with a certain amount of risk.

UPDATE: Here's the vote tally.  More than two-thirds of Democrats voted against this bill.  These are the champions of free speech?

Fri Nov 04 19:03:46 CST 2005 by TriggerFinger. Comments [Tweet]

More BATFE abuse...

SaysUncle has the scoop on the BATFE's latest tactic: changing the rules without changing the law.

Fri Nov 04 18:56:38 CST 2005 by TriggerFinger. Comments [Tweet]

I'm going to have to disagree...

David Hardy reports on an Arizona appellate decision concerning negligent entrustment.  The decision reverses a summary judgement grant (meaning the case will go to trial), and the facts aren't pleasant: A habitual drunk with an IQ substantially below average is given a firearm by his father; the gun is subsequently taken away after it was used in a crime (by the owner's brother); the owner of the firearm had shot himself accidentally at least once.  The mother eventually returned the gun to the owner, who used it to shoot and kill someone while drunk.  The owner was charged with manslaughter, and the mother is being sued for negligent entrustment.  All these events involve adults.

While I agree with David that the outcome was foreseeable, albeit not immediately so, I disagree that this means the suit should continue.  The owner's parents had no right to possess or control the gun.  It was his property.  You could make a case for negligent entrustment IF it was an actual transaction rather than a restoration of property to its rightful owner, or if the owner was clearly impaired (drunk) when the firearm was returned.  But if he's not presenting an immediate risk, it's his property, end of story.

Anything else is to legalize theft "for their own good".  We've already seen this tactic in the gun control debate: where do you think all the guns people turn in for gun "buybacks" come from?  Nosy girlfriends and parents stealing the property of their family members or boyfriends and turning it in to the authorities.  It's sort of like the gestapo posters that used to advise you to turn in your friends for fun and profit.  Except that those taking advantage of the programs have to do their own dirty work.

Fri Nov 04 18:48:28 CST 2005 by TriggerFinger. Comments [Tweet]

Where does the BATFE get "ownership history"?

FreedomSight reports on the BATFE's eTrace program, which can supposedly track the ownership history of guns used in crimes.  He wonders where they get their data.  Good question.  Unfortunately, he probably won't like the answer, even leaving aside the fact that it comes from a Brady Campaign webpage:
Do state police perform a background check in addition to federal NICS check? Yes

Arizona: State law requires gun buyers to go through a state-based criminal background check in addition to the federal NICS check. 
A state check can retain the data as long as state law allows.  I would not be at all surprised if the BATFE could turn that into a mandate to maintain their own records, maybe by having Arizona provide a copy of the state record after the NICS check.  Then it's not a NICS record.  It's an "Arizona State record".

UPDATE: Commenters at SaysUncle think it's just an internet portal to the old trace system.  They may be right.  But I wouldn't be surprised if the BATFE is pulling the trick I described above anyway.

Thu Nov 03 23:25:12 CST 2005 by TriggerFinger. Comments [Tweet]

The NRA is serious about Conoco...

Noticed a new billboard while driving home this afternoon.  Bright red, with white text.  Very sorry I don't have pictures, but I don't habitually carry a camera.  The billboard was very simple, and I reproduce the wording from memory as best I can:

"Conoco-Phillips is no friend to gun owners. -- NRA"

This is a billboard next to the largest interstate highway in the middle of downtown Austin, TX.  Many thousands of people drive this highway every day.  They will see that billboard.  Maybe it will make a difference.  Regardless, it is good to see the NRA taking the campaign to the public.

UPDATE: The Heartless Libertarian says the actual wording is "ConocoPhillips is No Friend of the Second Amendment."

Thu Nov 03 22:38:23 CST 2005 by TriggerFinger. Comments [Tweet]

Briefing notes from US v Miller...

... courtesy of Arms and the Law.  It's interesting stuff, and scary to realize what a foundation of sand the massive legal ediface of gun control has been built upon.

Thu Nov 03 22:32:37 CST 2005 by TriggerFinger. Comments [Tweet]

David Hardy suggests caution on Alito...

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.

That's good advice, as far as it goes.  So far I haven't seen anything suggesting Alito's opinion on the 2nd Amendment directly.  However, his willingness to construe the commerce clause narrowly in a case involving machineguns is suggestive.  Not dispositive, just suggestive.

One thing that strikes me.

US v Lopez was commented on by Roberts in his confirmation hearings, and Roberts said something remarkably similar -- that a congressional finding or a requirement for a prosecutor to prove an interstate commerce nexus (not difficult, unless your gun is homemade) might have saved the no-guns-in-school law at issue in Lopez. 

Here is the relevant part of US v Lopez:
Although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 14]   congressional committee findings, regarding effect on interstate commerce, see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990), the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Brief for United States 5-6. We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. See McClung, 379 U.S., at 304 ; see also Perez, 402 U.S., at 156 ("Congress need [not] make particularized findings in order to legislate"). But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here. 4 
In other words, while Alito can be criticized for not striking down the National Firearms Act as violating the 2nd Amendment, what he actually did do was exactly what Supreme Court precedent allowed him to do... he struck down the conviction on the grounds that there was no interstate commerce nexus.  And when the decision notes that a Congressional finding or nexus requirement might have saved the law, he's doing the same thing that Roberts was doing in his confirmation hearings: quoting Supreme Court precedent in US v Lopez.

It would be incorrect to cheer Alito as a 2nd Amendment champion.  He may turn out to be, with the right case before him.  He may not.  There's not much to go on.  But it's definitely incorrect to attack his opinion in Rybar for suggesting that Constitutionality was just a Congressional finding away.  He wasn't saying that in his own voice, he was channeling the Lopez precedent, just as Roberts did.

Thu Nov 03 22:27:34 CST 2005 by TriggerFinger. Comments [Tweet]

Parker v DC: Schedule Argument on Standing and the Merits

I have been following the case of Parker v DC, involving several residents of the District of Columbia suing the city in an attempt to strike down the ban on operational firearms (particularly handguns).  The case was filed before the NRA's similar case (Seegars v Gonzales) but due to various procedural issues has been waiting for the latter case to reach a conclusion before moving forward.  Thus, while the Seegars plaintiffs are currently waiting to see if the Supreme Court will hear their case, Parker v DC is moving forward before the a 3-judge panel at the DC Court of Appeals. 

When DC Appeals Court decided Seegars en banc, it freed up the Parker case to move forward.  Both sides in Parker filed a series of briefs arguing what the next step in the case should proceed, given the decision in Seegars.   We now have a decision on that point.

Without further ado... our side won.  Despite the similarities between the two cases, the court will schedule briefings and oral argument on both the question of standing and the merits of the case.  Here's the order in PDF format, if you want it.  The District of Columbia had argued for (what amounts to) summary dismissal, and they lost.

Here's the meat:
Upon consideration of the initial motion to issue a briefing schedule and set oral argument on the merits, the opposition thereto and motion for summary affirmance, the reply to the opposition to the initial motion and opposition to the motion for summary affirmance, the reply to the opposition to the motion for summary affirmance, the second motion to issue a briefing schedule and set oral argument on the merits, the opposition thereto, the reply, the motion to remand with instructions to dismiss or, alternatively, for summary affirmance, the opposition thereto, and the reply, it is ORDERED that the motion for summary affirmance and the motion to remand with instructions to dismiss or, alternatively, for summary affirmance be denied. The merits of the parties? positions are not so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). It is FURTHER ORDERED that the motions to issue a briefing schedule and set oral argument on the merits be granted. The Clerk is instructed to calendar this case for presentation to a merits panel, and the parties are instructed to address both standing and the merits of the case in their briefs.
What this means is simple.  The Parker attorneys file a brief arguing their points; the District  files a reply brief, and the Parker attorneys file a response.  Once all those are filed oral arguments will be scheduled. 

Although this is clearly a win for our side, it's not the end of the case.  It suggests, but does not prove conclusively, that the judges are inclined to view the Parker case as being  distinguishable from Seegars.  However, we will still need to argue the merits of the case and the issue of standing.  The only thing that we won at this point is the right to continue the case -- but the Seegars precedent did put that at risk, so it's a necessary victory.

UPDATE: In the comments, the Heartless Libertarian asks whether Janice Rogers Brown might be on the panel.  I'd say there's a pretty good chance of that.  Why?  Because she was on the panel that produced this decision in our favor!  The order was issued by the trifecta of Raymond Randolph (Bush I), Karen Henderson (Bush I), and Janice Rogers Brown (Bush II). 

I don't know if they typically reshuffle the panels in the middle of a case, but I would think they would try to keep the same panel throughout if possible. 

Thu Nov 03 19:34:29 CST 2005 by TriggerFinger. Comments [Tweet]

Sour grapes or real canididate?

I dunnoReason thinks sour grapes.  

Wed Nov 02 20:51:35 CST 2005 by TriggerFinger. Comments [Tweet]

Put the pressure on to investigate Katrina confiscations...

The Gun Owners of America are calling for your help in pressuring the public officials and military officers in charge of investigating and prosecuting the confiscatory criminals of Katrina and their cronies:
In light of this overwhelming evidence, GOA urged General Fine to "investigate who are the guilty parties who need to be held accountable for perpetrating these harmful acts against innocent Americans."

General Fine has the authority to investigate the criminal acts of federal officials and to refer them for prosecution. 

So far, it appears that General Fine has been dragging his feet on this request -- which is why he may need to hear from folks all around the country.

Get your letters out, folks.  If they can get away with confiscating firearms, they'll do it, whether it's "legal" or not.

Wed Nov 02 20:45:07 CST 2005 by TriggerFinger. Comments [Tweet]

Roberts and Alito on Lopez

Reason's Jacob Sullum shares my concerns about Roberts on the Lopez decision (Roberts took the narrow view in his confirmation hearings, suggesting that a mere jurisdictional requirement would have saved the law):
Yet according to Roberts, the crucial defect in the Gun-Free School Zones Act was its lack of a "jurisdictional element" requiring the government to show that a firearm involved in a violation had traveled at some point in interstate commerce. In 1996 Congress passed a new version of the law that includes this requirement, which (as Roberts noted) is generally easy to meet.
They have some troubling words about Alito on this issue, but frankly, we're not likely to get someone better on this issue from this President; especially not after the rejection of Miers.
As Justice Clarence Thomas has been arguing for years, the Supreme Court cannot enforce principled limits to the Commerce Clause as long as it allows Congress to regulate not only interstate commerce but anything (including, we discovered this year, homegrown medical marijuana) said to have a "substantial effect" on it. Roberts told the Senate Judiciary Committee he has "no agenda to overturn or revisit" that doctrine, and it seems unlikely that Alito does either. Sadly, it looks like the "constitutional freak" is Thomas.
Remember, however, that lower court judges are bound by precedent.  Supreme Court justices are free to overturn precedents they think are wrong, although Roberts in particular characterized himself as reluctant to do so.

Wed Nov 02 20:36:17 CST 2005 by TriggerFinger. Comments [Tweet]

Who says liberals favor free speech? (Part 2)

Now looms a wolfish assault in sheep's clothing: the Online Freedom of Speech Act, which House Republican leaders are suddenly planning to put to a vote on Wednesday so politicians can abuse the Internet as an unregulated outlet for multimillion-dollar advertising campaigns. The bill, put on a fast track in the hope that nobody notices outside the political-industrial complex, would exempt the Internet from the hard-won three-year-old reform law that stopped federal officials from tapping corporations, unions and fat cats for unregulated donations in the quid pro quo marketplace.
The New York Times isn't defending anything other than their dwindling profits.  Hat tip to the good folks at Hit and Run.

Wed Nov 02 20:29:03 CST 2005 by TriggerFinger. Comments [Tweet]

Reason on Planned Parenthood v Casey...

Their central point is that there is a difference between notification and consent.  Keep that in mind, because the Left will try to blur that line.

Wed Nov 02 20:25:32 CST 2005 by TriggerFinger. Comments [Tweet]

Things are getting heated in Illinois...

... if you live up there I suggest you call your legislators and remind them that what (doesn't) work for Chicago shouldn't be applied to the whole state.  It's also worth noting the tactics being used by the governor; he's coerced his police chief into making it an "us or them" issue.  This is the governor who travels with a convoy of 20 armed security officers, by the way.

Here's a sample of the idiocy in question:

Law enforcement complains the trading bill will let gun owners trade up to higher-powered weapons without waiting periods that discourage impulsive gun crimes. They also argue communities should have the right to pass strict rules on how weapons must be stored when gun owners are passing through.

Well, when gun owners are driving around their state with their firearms securely stored, unloaded, in a locked case in the trunk, as per the Firearm Owner's Protection Act, it would be kind of nice to know that the 20 little neighborhoods you drove through can't charge you with a crime because you didn't wrap the barrel with a pink ribbon. 

And as for firearm trading -- if someone already has a firearm, are they really going to be deterred from using it due to a waiting period before they can get a higher-powered firearm from a private individual?  Not to mention -- how exactly are they going to enforce this?  As usual, they will rely on the law-abiding gun owners to obey the silly laws and the criminals to break them, resulting in more shootings, resulting in more calls for gun control... at least until someone is smart enough to break the cycle by loosening gun laws.

Wed Nov 02 19:56:34 CST 2005 by TriggerFinger. Comments [Tweet]

What part of shall not be infringed is unclear?

Nicki asks, "What part of shall not be infringed is unclear?"

I'll answer that one.  It's a really simple flaw that undermines the whole Bill of Rights.  While it's disappointing that it would be necessary, experience has shown that there is no other way to maintain the required deference to the rule of law.  So what is this mystery clause, this hidden secret to a Constitutional government, this startling missing element to the 2nd Amendment of our venerated Constitution?

Penalties for violation.

Wed Nov 02 19:38:19 CST 2005 by TriggerFinger. Comments [Tweet]

The Incumbent Protection Act...

"I got elected. You may not criticize me."
OK, the incumbents don't put it that way. They say: "There's too much money in politics! We need campaign finance reform."

This sort of nonsense started with the Alien and Sedition Acts... of 1798.  Career politicians will go to any length to hold on to power.  I say we ban incumbents entirely.  Maybe we can even confiscate them door-to-door...

Wed Nov 02 19:09:29 CST 2005 by TriggerFinger. Comments [Tweet]

Even Canadian newspapers get the liability thing...

Justice Minister Irwin Cotler promptly came up with a half-cocked scheme to have the provinces empower Canadians to sue U.S. gun manufacturers whose legal products are used illegally in Canada.

It's quite a doctrine, that. The U.S. Congress, as it happens, has just passed a law shielding gun makers and dealers from liability in many negligence lawsuits; it's a bad law in some ways, but so would be any Canadian law saying the maker of a legal product is responsible for the way it's used. Please do not roll up this newspaper and beat anyone to death, no matter how infuriating you find the editorials: we wouldn't much like to be sued, and that surely wouldn't be far down the road. (As for citizens suing the government in Ottawa for bad decisions, on the gun registry, say, where do we sign up?)

That's a good analogy.  They also have about half the right idea about violent crime.
Police and prosecutors there have just stepped up their anti-gun and anti-gang efforts and will add resources by borrowing additional prosecutors. That makes sense: Toronto's gun violence is mainly gang violence. Mercifully, this problem of shooting sprees has not reached Montreal to the same degree as in Toronto, in part no doubt because police here have had some success against gang culture.
Unfortunately, they still think that restricting access to guns is a part of the solution.  But at least they are talking about restricting gang members' access to guns, rather than the general public.

Wed Nov 02 19:03:57 CST 2005 by TriggerFinger. Comments [Tweet]

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