Robert Levy on Heller

Robert Levy explains why the Bush administration's Justice Department was wrong to file an amicus brief in Heller v DC opposing the use of strict scrutiny as the standard of review and favoring remanding the case to the lower courts for further fact-finding.  It's a good article, I suggest you read it. 

I do have one small quibble:
In fact, the Court of Appeals did not suggest that any federal gun regulations (including those on machine guns) are unconstitutional. Moreover, under the Supreme Court's 1939 precedent, U.S. v. Miller, machine guns are not protected by the Second Amendment without showing that they are in common use by civilians.
This is correct, but misses the point.  Allowing the federal government to effectively ban a type of firearm, and then claiming that type of firearm is not protected by the 2nd Amendment because it isn't in common use, is a recipe for similar tactics -- if the federal government almost-bans handguns for 80 years and then bans the manufacture of new handguns for 20 years, can it then ban all handguns because they are no longer in common use? 

When the first federal controls on machineguns were passed, they were undeniably in more common use than they are today.  When the ban on new manufacturer of machineguns was passed in 1986, can the contribution of 40 years of intrusive regulation and heavy taxation be ignored when questioning whether a class of firearms is "in common use"?  If a measure to confiscate all existing civilian-owned machineguns were passed today, could the contribution of a 20-year ban on new manufacture of machineguns for civilian markets be ignored when analyzing the 2nd Amendment implications of the law?  I don't think so.

But Levy's article also got me thinking on a different topic.

I am struck by the parallels between the Bush Administration's brief in this case and the outcome of the most recent Supreme Court precedent on the 2nd Amendment, US v Miller.

The last major Supreme Court precedent on the 2nd Amendment is the US v Miller case.  The Supreme Court issued a ruling in that case in 1939, and for the past 70 years, courts have cited US v Miller in their rulings supporting gun control without ever bothering to read the case.  So let's briefly summarize the Miller case.

Miller was prosecuted for possessing an unregistered, sawed-off shotgun that had been transported in interstate commerce.  He challenged the law under which he was charged as being in violation of the 2nd Amendment.  He won in the trial court, which ruled that the National Firearms Act violated the 2nd Amendment.  The government appealed directly to the Supreme Court; Miller was unable to appear (presumably imprisoned on other charges or dead), his lawyer was unable to file a brief without a client, so only the government was able to present their case to the Supreme Court. 

Rather than upholding the law directly, the Supreme Court examined the case and ruled (by implication) that Miller, a private individual, had 2nd Amendment rights at issue in the case.  They asked whether the weapon Miller was charged with possessing had military utility, concluded that they did not know one way or the other, and remanded the case to the lower court (which, remember, had originally ruled that the law under which Miller had been charged was invalid under the 2nd Amendment) for fact-finding on the question of whether Miller's weapon, a sawed-off shotgun, had military utility and was in common use. 

If the weapon had military utility and was in common use, it would be protected by the 2nd Amendment.

Miller remained unavailable for trial.  His case never proceeded, although his partner, Layton, plead guilty.  There was never any fact-finding concerning the military utility of a sawed-off shotgun.  Had there been, many veterans of WWI and WWII could have testified to the effectiveness and common use of a short-barrelled shotgun for cleaning out enemy trenches.

Miller was never convicted on the charges.

A conspiracy theorist might question whether the government, under Franklin Roosevelt,  arranged for Miller to disappear at such a convenient time.  Roosevelt had a history of conflict with the Supreme Court already.  I'm not a conspiracy theorist, by which I mean I am not asserting that this did in fact take place... but I wouldn't be at all surprised if FDR did actually give the order for Miller to be disappeared.

Let's compare the course of the Heller case with the course of the Miller case.  The case now known as Heller v DC began life as Parker v DC, and was filed specifically to challenge the DC ban on handguns and functional long arms.  Miller's case was a criminal case.  Miller won his case and overturned the law he was challenging in the lowest level of the court system, reflecting the "conventional wisdom" that gun control violated the 2nd Amendment; the Parker case had to deal with a spoiler effect from the Seegars case, and then proceeded to a narrow loss in the lower courts -- at least in part as a result of the precedent established by Seegars.  The "conventional wisdom" in the lower courts is that gun control does not have to overcome a 2nd Amendment hurdle.

The case was appealed to the DC Court of Appeals, again following in the footsteps of the Seegars case.  This time, though the appeals court differentiated from Seegars and struck down the challenged DC laws.

In the lower courts the District argued that plaintiffs (Parker, Heller, etc) had no standing to bring the case because they were not members of the militia.  This is the same argument made by the government in US v Miller.  However, in US v Miller, the Supreme Court rejected that argument without any briefing from the defendent.  In other words, the Supreme Court in US v Miller considered it obvious that Miller had 2nd Amendment rights to be protected.  The standing argument likewise failed with Heller, though it succeeded with other plaintiffs in the case (hence the change in naming for the case).

So, we're at the Supreme Court, the lower court has struck down a gun control law, and the government is going to try to defend the law.

So what is the Bush DoJ asking the Supreme Court to do with the Heller v DC case? 

They want the case remanded to the lower court for consideration of the merits of rifles and shotguns (which are permitted by DC law so long as they are not in operational condition) as replacements for handguns.  In other words, the government is asking the Supreme Court to replicate the Miller ruling by referring to the lower courts for additional evidence concerning the exact nature of the weapons and their utility for self-defense.

The last time the Supreme Court punted on this question, we got 70 years of lower courts blatantly misreading the US v Miller case even as they cited it in support of their local gun control laws.  Almost four generations of absolutely no protection for the 2nd Amendment rights of ordinary citizens in the court system. 

I'm not very enthusiastic about the prospect of another such weaselly ruling.  And I am furious that the Bush Administration has chosen to backstab the people who put him in office this way.  The man has no more elections to win, no more political dues to pay, and even his own vice president split with him on this issue.

UPDATE: Kevin at The Smallest Minority reminds me that the government appealed to the Supreme Court directly from the trial court.  I've updated the post to correct this point.  More information about US v Miller is available from Wikipedia (and many other places, but the Wiki writeup looks reasonable at this point in time).

UPDATE: Sailorcurt similarly questions the machine-gun point.  While it may be good PR to downplay the chances of legalizing machine guns, I do not think it is wise in the long term.  Machine guns are protected arms.

Tue Feb 19 01:47:19 CST 2008 by TriggerFinger. Comments [Tweet]

Obama on Guns

Speaking of doublethink, here's some thoughts from Obama on guns:
Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people's guns.
... and ....
At his news conference, [Prof. Obama] voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.
But wait... the District of Columbia's ban on handguns takes away people's guns.  (In case you are wondering, the District also bans functional rifles and shotguns; you are allowed to have a rifle or shotgun only if it doesn't work and has been registered through an intrusive and difficult process).

UPDATE: And there's more.  Per the Volokh Conspiracy, Obama has favored increased penalties for the interstate transport of firearms, making it a felony to have your gun stolen and used in a crime, restricting gun purchases to one gun per month, banning the sale of firearms at gun shows, increasing the fee to obtain an FFL, banning the sale of used firearms by police agencies, limiting gun ownership to those over 21 with mandatory training, banning firearm dealers from having a storefront within 5 miles of a school or a park, banning "Saturday Night Specials" (and isn't THAT a nice bit of racist irony?), mandatory background checks for all people working at a gun dealers (doesn't look too bad at first glance -- except that it would impose a huge economic penalty on large stores that also happen to sell guns, like Wal-Mart), mandatory "smart gun" functionality that only allows the original owner of a firearm to operate it (no resale?), and finally, increasing federal taxes on firearms and ammunition by 500%.

Mon Feb 18 03:40:26 CST 2008 by TriggerFinger. Comments [Tweet]

Want to carry on campus in Tennessee?

A lawyer/blogger is calling for student, staff, or faculty plaintiffs willing to sue public universities with gun free zone policies.  I can't vouch for whether he's any good as a lawyer, but those interested can look for themselves.  I certainty think someone should do this, but we need the best possible plaintiff and representation, so I'm not saying this is the right lawyer or you're the right plaintiff.  It's worth a thought, though.

Mon Feb 18 03:38:04 CST 2008 by TriggerFinger. Comments [Tweet]

Is Obama a secret Muslim?

Over at redblueamerica, the question is asked.  Unfortunately they miss one of the more interesting angles on this question in their analysis.  Obama has admitted attending a Muslim school in his childhood (he also attended a Catholic school), and that his father and stepfather are both Muslims.  Currently Obama claims an association with the United Church of Christ, which is itself somewhat problematic on non-religious grounds.  And, of course, Obama says he is a Christian, not a Muslim.

In the United States we treat religion as a matter of choice and conscience; it's not appropriate to impose religious tests on candidates for public office, and while voters may of course consider a candidate's religion in their decisions, it's usually more of a proxy for political beliefs than any true desire for theocracy.

But in Islam, renunciation is impossible.  Once a Muslim, always a Muslim.  According to doctrine, the only thing necessary to convert to Islam is the recitation of the sentence "There is no God except Allah; Muhammad is the Messenger of Allah" with understanding.  It's entirely possible that Obama has said exactly those words in his lessons as a youth.  Yet conversion from Islam is considered impossible.  In Eqypt, for example:
"The state does not recognize conversions from Islam and refuses to allow citizens to legally change their religious affiliation," the report stated. It noted that because family law is governed by religion, converts face difficulties in the areas of divorce, marriage, inheritance, and their children's mandatory religious education.
So, whatever Obama may consider himself, it seems that at least some Muslims would consider him either a Muslim still or an apostate.  That could produce some fairly extreme reactions from Islamic nations either way.

Is this a meaningful criteria on which to base a vote for or against Obama?  Not really.  But it could have some interesting consequences if he wins the general election.

Mon Feb 18 03:33:01 CST 2008 by TriggerFinger. Comments [Tweet]

I may not much like McCain...

... but there's little doubt he's better than what they Democrats will be offering in 2008.  The latest demonstration of this comes from a bill to allow firearms into National Parks (when they are accessible for self-defense; I believe it's already legal to transport them when properly stored).  McCain is cosponsoring the bill and the Senate leadership is blocking is, reportedly to prevent Hillary and Obama from having to take a vote. 

Hat tip to David Hardy, from whom I got the story.

Sat Feb 16 16:05:05 CST 2008 by TriggerFinger. Comments [Tweet]

Comments, Trackbacks disabled...

I've disabled comments and trackbacks until I get a chance to implement better spam protections.  That could be a while.  This post will remain on top until they are enabled again.

Tue Feb 12 10:26:47 CST 2008 by TriggerFinger. Comments [Tweet]

We should be catching terrorists, not creating them

... and no, I don't mean our foreign policy.  This is happening right at home:
"The hope is that they will nab an actual terrorist or prevent a putative jihadi from becoming one," says David Cole, a law professor at Georgetown University and co-author of Less Safe, Less Free, a new book detailing the ways 9/11 has transformed domestic law enforcement. "It makes sense in general ?but when you're pressing people to undertake conduct they would have never undertaken without an informant pushing them along, there is a real question if you're creating crime, not preventing crime."
Where's the line?  How can we tell the difference between a terrorist plot stopped in the nick of time, and a terrorist plot that was created by the law enforcement organizations involved?   When you get down to it, someone who is willing to look into a video camera and declare jihad on America probably deserves a bit of law enforcement scrutiny.  But does it really make sense to devote extensive law enforcement resources to encouraging them?
The next Wednesday, the two men met with Cap in a parking lot under the gaze of agents from the JTTF. As Shareef swapped the used speakers for four nonfunctioning grenades and a 9mm handgun with neutered ammunition, he was swarmed by law enforcement. News of the bust traveled the world over. "It had all the makings of a holiday bloodbath," Fox News breathlessly reported. Shareef was charged with the ultimate crime in the so-called War on Terror: attempting to use a weapon of mass destruction.
Here we have those four terrifying words: Weapon of Mass Destruction.  Granted, we're dealing with something a little more dangerous than a simple handgun.  On the other hand, shouldn't a weapon of mass destruction involve... well... mass destruction?  Four grenades just don't qualify. 

There are some successes:

In Buffalo, the FBI spent eighteen months tracking the "Lackawanna Six" ?a half-dozen men from the city's large Muslim population who had been recruited by an Al Qaeda operative in early 2001 to undergo training in Afghanistan. Only two lasted the six-week course; the rest pretended to be hurt or left early. Despite extensive surveillance, the FBI found no evidence that the men ever discussed, let alone planned, an attack ?but that didn't stop federal agents from arresting the suspects with great fanfare and accusing them of operating an "Al Qaeda-trained terrorist cell on American soil." Fearing they would be designated as "enemy combatants" and disappeared into the legal void created by the Patriot Act, all six pleaded guilty to aiding Al Qaeda and were sentenced to at least seven years in prison.

They went to Afghanistan, were trained by Al Qaeda, and returned.  At that point the only logical thing to do is assume they have become agents of the enemy, which means you invoke counterintelligence doctrine -- surveillance, to identify their other contacts, and eventually rounding up the ring.  That the people in question were too pathetic to finish the training courses they signed up for and did not appear to be subsequently planning and attack is almost irrelevant. 

But there are also failures:
In Brooklyn, a Guyanese immigrant and former cargo handler named Russell Defreitas was arrested last spring for plotting to blow up fuel tanks at JFK International Airport. In fact, before he encountered the might of the JTTF, Defreitas was a vagrant who sold incense on the streets of Queens and spent his spare time checking pay phones for quarters. He had no hope of instigating a terrorist plot of the magnitude of the alleged attack on JFK ?until he received the help of a federal informant known only as "Source," a convicted drug dealer who was cooperating with federal agents to get his sentence reduced. Backed by the JTTF, Defreitas suddenly obtained the means to travel to the Caribbean, conduct Google Earth searches of JFK's grounds and build a complex, multifaceted, international terror conspiracy ?albeit one that was impossible to actually pull off. After Defreitas was arrested, U.S. Attorney Roslynn Mauskopf called it "one of the most chilling plots imaginable."
Perhaps the plot was so "chilling" because it had been created by the finest minds of the FBI.  Here's another chilling plot:
The next morning, I meet with three members of the Field Intelligence Group. The FIGs are designed to create a centralized approach to intelligence, both domestic and foreign. In northern Illinois, the group analyzes information from around the world, as well as that supplied courtesy of Operation Virtual Shield, the surveillance initiative designed to make Chicago one of the most-watched cities in the world. Thousands of cameras deployed on street corners, train platforms and buses now provide a nearly comprehensive visual record of all public movement in Chicago.
"A nearly comprehensive visual record of all public movement in Chicago."  An agency that combines information from foreign intelligence and domestic surveillance.  And for what?  In return for constant surveillance of ordinary citizens and how many millions of taxpayer dollars, how many terrorists have been captured?

And it gets worse.
Many of the callers who contact the JTTF are intentionally misleading, hoping to take revenge against a boyfriend, neighbor or co-worker. Such hoaxes are so routine, in fact, that the JTTF's public-relations officer keeps a separate file stuffed with press reports of invented pipe bombs and unattended suitcases and lunch trucks packed with explosives.
Turn in your friends and neighbors for fun and profit?

If this was a serious operation you'd think that some of these would be prosecuted as deliberate hoaxes.

"Have you ever found a terrorist cell?" I ask.

"That's kind of a vague question," Gutierrez says. "There are certain things we can't talk about, because it leads to more."

Yeah.  More questions.

I firmly believe that there are people who hate the United States and mean us harm.  Some of them even live here.  Most of them don't. 

The idea of terrorists, of whatever stripe, in possession of a nuclear weapon scares me.  But nuclear weapons require the resources of a nation-state to develop or acquire.  But you know what doesn't scare me?
The two officers tell me about a close call at the Taste of Chicago food festival last year. Millions attend the annual street feast, with Chicago-style sausage and pizza and tamales on sale in booths along the lakefront.  There was a radiological hit on one of the sniffers... For an hour, the JHAT frantically tried to determine if Chicago had been struck by a "dirty bomb"... Finally, after an anxious hour... the cause of the positive alert was determined.  "Someone who had chemotherapy had just done a poop," DeRosa says.
THAT doesn't scare me.

We have entered the realm of Orwell's perpetual war.  Pray we can find our way out.

Tue Feb 12 02:15:11 CST 2008 by TriggerFinger. Comments [Tweet]

Alan Gura has an article on Parker...

Alan Gura has an article on the Parker case.  It's pretty old by now, since I first wrote this post almost a year ago, then left it sitting on the table.  But in the interests of completeness, here is it.

Tue Feb 12 00:41:59 CST 2008 by TriggerFinger. Comments [Tweet]

This could be embarassing...

It seems that the head of the noted anti-gun organization Violence Policy Center has a Federal Firearm Dealer's license, which lists as his place of business the VPC's offices in Washington DC... where possession of functional firearms by the peasants is banned.  This license allow him (and presumably, his organization to some extent) to deal in firearms.  If the press were actually independent, this factoid would have resulted in quite a few embarassing questions at press conferences by now.

David Hardy has the evidence, and notes that the license probably allows the VPC to ignore the ban on functional firearms imposed on the ordinary citizens of the District of Columbia.

Tue Feb 12 00:31:32 CST 2008 by TriggerFinger. Comments [Tweet]

Plugging a favorite author...

I've been a fan of the author Daniel Keys Moran for some time, and his books are relevant enough to be posted here (for a variety of reasons which would be spoilers).  I haven't done so because they have been very hard to find; small print runs in the 90s, one or two vanity-press runs after that, and out of print for probably over a decade now.  Yet they are really, really good, and the author has now released them into PDF format, freely downloadable. I'm not very good at describing the plot in a way that doesn't sound a little nuts.  Just give them a chance, and you won't regret the time.

I recommend beginning with Emerald Eyes to get the background, but the story really starts in The Long Run

I'm enabling comments on this post, mostly as a test so I can see if the spammers are still trying, but also so people can let me know if they liked 'em.  The author has a low-volume blog, too.

Kevin, these are the books I was talking about during dinner.

Fri Feb 08 00:52:59 CST 2008 by TriggerFinger. Comments [Tweet]

Climate change vs Global Warming...

For a while now I've been noticing two different memes making the environmental rounds.  Some folks are talking about Global Warming; others are talking about Climate Change; and they seem to be using them as synonyms.  Except, of course, they aren't... quite.

Global Warning means, obviously, that the whole earth is getting warmer.  Climate Change means that the climate is changing.  Using the latter term is a lot broader; the climate is "changing" if the temperature goes up, or if it goes down, or if it goes up in some areas and down in others, or if it becomes more humid, or less humid, or any of a large number of other variables that make up what a human perceives as the climate. 
Looking back on the historical prevalence of the two terms, I'd judge that there appears to be a shift from Global Warning to Climate Change underway.

So what's the big difference between these two terms, and why would people want to switch?

Simple: Global Warming is a specific term that has a specific meaning, and (as is necessary for any kind of scientific theory) can be falsified.  You can take measurements and find out how much the globe warmed, or failed to warm, over a specified time period.  But this is also a problem... what if the globe doesn't warm?  The problem is, Global Warming can be tested and proven to be a poor predictor.  So the target shifts to Climate Change, which is much harder to prove, because the Earth's climate is always changing... it's the causes of the changes that are harder to nail down.

UPDATE: Kim du Toit takes this reasoning one step further, and ends up where I should have realized I was heading... Orwell's definition of Doublethink, from 1984:
The power of holding two contradictory beliefs in one?s mind simultaneously, and accepting both of them? To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies -- all this is indispensably necessary.
Can anyone doubt that this accurately describes most of the Global Warming Climate Change activists?

Tue Feb 05 19:54:48 CST 2008 by TriggerFinger. Comments [Tweet]

Back in action, sort of...

It's been a while since I've done anything with this blog.  But I had the chance to have dinner with Kevin from The Smallest Minority yesterday evening (he was in town for business) and maybe it's time that I got back into things.  Especially with the Heller case being briefed before the Supreme Court.

It'll be a couple days before the DNS propagates properly to bring the site back under my old software suite, and there may be bugs.  But at first glance, everything seems to work.  So here's hoping I find some blogspiration.

Tue Feb 05 03:12:03 CST 2008 by TriggerFinger. Comments [Tweet]

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