TriggerFinger


Oversimplifying the standing question...

Kevin at The Smallest Minority and Uncle of SaysUncle are both complaining about the requirement for "standing" in order to challenge a law on Constitutional grounds.  In so doing, though, they are overstating the requirements a little. Kevin's summary was:

There's something wrong with a system that essentially demands that you break a law before you can challenge its Constitutionality.

I would be in full agreement with that statement, if in fact it was accurate.  However, it's not actually the case for most challenges.  I don't want to claim more expertise than I actually have, not being a lawyer, but as I understand it, the standing requirement is "an actual case or controversy".  That's not very illuminating, but when it is applied to First Amendment cases, it is generally applied such that you do NOT have to violate a law and wait to be charged before you can challenge the law.  Generally, for a First Amendment case, it's sufficient to show that something you want to publish might cause you to be charged if you actually do.  Usually you have to have some specific work in mind, for example, but even that isn't necessary if you're talking about, say, a regularly published magazine or newspaper, or some sort of project that you can specifically define but haven't yet invested money in producing (because it would be illegal). 

I'm afraid that standing, as applied to the 2nd Amendment, is another example of "gun bigots" applying different standards as a result of their bigotry. 

In the case of the DC Circuit, the courts were bound by the Navegar precedent.  That case arose from the assault weapons ban and set a very, very high bar for standing in gun related cases.  That bar was set so high, in fact, that a visit by BATFE agents to a firearms manufacturer to individually notify the manufacturer that certain of their products, named specifically in the law, was not deemed a "specific and individualized threat of prosecution"... because the manufacturer in question chose to comply with the law rather than disregard it (and risk a felony conviction if he lost).  If that sounds like nonsense to you, well, I can't say I disagree.

The bar is set significantly lower for First Amendment cases.  I'm not sure where it is set for other Constitutional rights, but I imagine the extremes of the issue are defined by the First and Second Amendment rights.

Perhaps one of the lawyers familiar with this issue and how standing in firearms cases differs from standing in First Amendment cases could give a good summary?

Mon Jun 16 11:32:00 CDT 2008 by TriggerFinger. Comments [Tweet]

Obama on Guns

Bill Owens has a pictorial essay outlining the consequences of Obama's various gun-control ideas.  He focuses on Obama's support for banning "all forms of semi-automatic firearms", indicating how that would cover everything from sporting shotguns to Olympic target pistols to popular hunting rifles and handguns.  From there, it's on to Obama's support for renewing the Assault Weapons Ban, and then to the handgun ban.  It's a good way to show someone not really familiar with the details just how broad Obama's gun control support really is.

Mon Jun 16 10:57:54 CDT 2008 by TriggerFinger. Comments [Tweet]

What to watch for in the Heller decision

The Supreme Court is edging closer and closer to the deadline for publishing a legal decision in the Heller case.  Mike O'Shea has an article describing the points to look for in the decision.  It's a good piece to read now, and use as a checklist later as you read the actual published decision.  It also has a few interesting points that I haven't seen raised elsewhere, including discussion on what happens next (challenging Chicago's handgun ban to resolve incorporation issues?) and what happens to the other 5 plaintiffs in what used to be Parker v DC rather than Heller v DC.

Sun Jun 15 18:01:22 CDT 2008 by TriggerFinger. Comments [Tweet]

Education...

I don't have kids.  I don't want kids.  These two things combine to produce a general indifference to educational issues.  It is, as the saying goes, someone else's problem.

But, as I was once a student myself, I still sometimes feel compelled to comment when the school system produces an example of complete and utter stupidity.  It's bad enough when the government forces you to spend 1/3 of your life locked into small, uncomfortable, intellectually-stifling spaces with teachers trying to push propaganda into your head (and maybe, if you get lucky, an occasional tidbit of useful knowledge).  When I was being subjected to the indoctrination sequence commonly known as "high school", even granting that I was not being subjected to the public school system, I was still heavily proselytized to on the matters of sex (don't do it, and here's how), drugs (don't do them), and rock'n'roll (known to lead to sex and drugs).  They pulled some crazy stunts in an effort to "make a point" about whatever social ill was currently highest on their internal priority list.  However, they didn't ever go so far as to tell me one of my classmates had died.

Wait; let me back up.

At one point in my high school experience, a teacher interrupted the class to tell the whole class that one of my classmates had died.  This was a pretty small class, so while I didn't know the person involved very well, they were definitely a known face and a reasonably friendly person.  I was pretty shocked that they had felt the need to kill themselves, as frankly, I hadn't noticed anything wrong.  Everyone has issues, but the issues have to be pretty serious to rise to the level of suicide... and I was hardly the most social type, so the other students were undoubtedly significantly closer to the missing girl than I.

I remember thinking at one point, as the entire school went about it's business that day in a state of mourning, that this whole exercise was a pretty sick joke, and that any time now they would cancel all the scheduled "student counseling" and "trauma management" sessions in favor of announcing to the whole school that the "suicide" was a trick to make us think about the consequences of drinking or driving or doing drugs or something.  Small though it was, the school had it's own designated mental health worker there to keep the students happy and smiling and carefree as they were indoctrinated... which, of course, required playing all sorts of sick jokes like this to "raise consciousness" about whatever seemed lowest that day.

I couild spin tales of DARE videos describing what drugs do to your brain and MADD videos with footage of ACTUAL REAL DEAD PEOPLE from drunk driving accidents.  I won't bother... but you get the idea.  There was definitely a bit of a history of this bullshit.  I suppose that's not unusual.

So I spent a large part of the day waiting for the other shoe to drop, waiting for the announcement that, hey, no one was really dead, we're just trying to make you think about the possibility that maybe one of your classmates is feeling a little depressed and needs some support...

At some point, I realized that there wasn't going to be any such announcement.  That someone I had known was dead.  That the grief counselors were really doing grief counseling.  That some of my classmates, who had known the deceased better than I had, and had probably heard the news the night before, were sporadically crying for a good reason.   That the people who were really close to the deceased weren't in class at all, not because their vegan diets had made them feel less than fresh that morning... but because they had lost a friend they were close to.

What does it say about our educational system that students learn to assume that the authority figures in their lives are deliberately lying to them?

Real tragedies happen.  We don't need to fake them.

Fri Jun 13 13:23:09 CDT 2008 by TriggerFinger. Comments [Tweet]

Looks like the gun bigots expect to lose Heller...

... but of course they have no intent to discontinue their unConstitutional agenda, do they?  Of course not! 
"We've lost the battle on what the Second Amendment means," campaign president Paul Helmke told ABC News. "Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically."
How's that crow taste, Helmke?  Frankly, as a special interest group whose major policy initiative is viewed by 75% the American public as unConstitutional after years of effort and significant funding, I'm surprised they haven't all committed suicide in shame.  With something other than a gun, of course. 

Although, to be honest, I want to see the actual decison before I decide to celebrate too hard.  That could come down from the court any day now.

Instead, they are trying to rally the troops for slightly-less-unConstitutional gun laws:
"Universal background checks don't affect the right of self-defense in the home. Banning a super dangerous class of weapons, like assault weapons, also would not adversely affect the right of self-defense in the home," said Henigan. "Curbing large volume sales doesn't affect self-defense in the home."
I'll state the obvious: Banning assault weapons won't pass strict scrutiny.  Curbing large volume says won't pass strict scrutiny.  Universal background checks might... if the other side gets lucky. Were I Mr. Henigan, I'd be looking for another line of work.

Fri Jun 13 02:29:52 CDT 2008 by TriggerFinger. Comments [Tweet]

Information about Obama's gun store exclusion zone gaining traction...

Michelle Malkin's see-dubya has a lengthy post about it.

Wed Jun 11 02:59:12 CDT 2008 by TriggerFinger. Comments [Tweet]

The heart of the problem

There's a medium-length article on the Heller case in a Kansas newspaper.  Unfortunately I let this post sit in the queue long enough that the article itself appears to have expired.  However, before it disappeared, I did snag one memorable quote from the Brady Bunch:
"Jails and courtrooms are filled with people prosecuted and convicted for violating gun laws," said Jonathan Lowy, senior attorney for the Brady Center to Prevent Gun Violence. "If I'm a defense attorney trying to think of how to get a gun criminal off the hook, one argument is he was executing his constitutional right to keep and bear arms."
The bold type is mine.  In the minds of the gun bigots, there are gun criminals, people who should be locked up merely for having or wanting to have a gun.  The assumption is that anyone who has a gun is a criminal -- otherwise innocent men and women turned into criminals not for any malicious act, but for merely the morally-neutral act of possession.

Because, of course, the 2nd Amendment does not protect violent crimes like murder, rape, or battery.  It protects the peaceful ownership and use of arms.  Anyone who is in jail, or on trial, merely because they had a gun is not a criminal.  They are a victim of deprivation of civil rights under color of law.

If they used that gun to commit some other crime of violence, or even credible intimidation (where intimidation does NOT mean accidentally letting someone see a gun), throw the book at them.  But just possession, keeping or bearing, for a non-felon?  That's not a crime, that's a right.

Tue Jun 10 11:35:17 CDT 2008 by TriggerFinger. Comments [Tweet]

Obama on Guns

The NRA has a fact sheet about Obama's positions on guns, now that he's the official Democratic nominee.  It's scary.  Worse, the man is very attractive to people who don't spend a lot of time paying attention to politics (read: people who don't do their own research into candidates).  With any luck, more of these past positions will start coming back to haunt him.

That said... if I didn't know better I'd say Obama has deliberately kept a low profile on most controversial issues in preperation for his run for the presidency.  His legislative record is simply too sparse.  He's not trying to make a career out of passing laws, he's treating each political office as a line on his resume. 

Fortunately, being a liberal Chicago politician means that you can't avoid the gun control issue.  And in the general election, it'll be a doozy if we can get the message out.

I know I'll be watching closely to see how he reacts when the Heller ruling comes out, too.

Tue Jun 10 11:11:12 CDT 2008 by TriggerFinger. Comments [Tweet]

Long distance shooting and the 6.5mm....

I ran across an article on the 6.5mm cartridge and long distance shooting that was fairly informative.  I found it by duplicating a google search for "savage f class production goals" that brought a reader to my blog, presumably landing on my Building a Boomershooter post.  I'd like to take a moment to thank the reader for leading me to a good article!

Mon Jun 09 15:53:02 CDT 2008 by TriggerFinger. Comments [Tweet]

Firearms, background checks, and suicide...

Over at Firearms and Freedom there's some discussion about the effect of federal versus local background checks on the rate of suicide by firearm.  He gets a little bit into the numbers, but it's not actually necessary.  I can tell just from a few words that the study he's reading won't tell us anything useful.
Not quite sure what to make of this, but the Medical College of Wisconsin released a study that gun suicide and homicide rates were about 25% lower in states that did local background checks as opposed to state or federal checks.
Examining "gun" suicide and homicide rates will never be productive.  In order to have any real point you have to study whether there are overall differences in suicides or homicides.  After all, someone who commits suicide or is murdered will be just as dead whether they were killed with a gun or a knife or someone's bare hands.

I've always been a little puzzled by the persistent desire to examine "gun" deaths rather than "overall" deaths.  It's not inconceivable that restrictions on firearms would reduce the number of successful murders and suicides.  For example, in theory, someone who has been recently hospitalized as a suicide risk might show up on a background check as having mental health issues resulting in a denial of purchase, and then not have the willpower to go through with a more elaborate and painful method.  Or, similarly, someone who shows up as a criminal on a background check could be arrested by the police before finding other means to commit the intended crime. 

Yet we continually see studies examing "gun" deaths, rather than "overall" deaths.

That tells me that someone in the anti-gun community has done the studies, at least informally, and found that there is no difference, or even worse, that the legal availability of firearms reduces the homicide and suicide rate.  That someone must have put out the word not to study the issue, because the studies would result in nothing at all or even in active damage to "the cause".

I can't think of any other reason for this peculiar consistency.

Does anyone have any good studies addressing this point?

Mon Jun 09 15:28:23 CDT 2008 by TriggerFinger. Comments [Tweet]

Another comment from Megan's post...

One of the commenters on Megan's post suggested that a rapier was a better defensive weapon for an apartment than a firearm:

Is this for home defence, or concealed carry? If only the former, I'd actually recommend forgoing the gun and investing in a bladed weapon, preferably something with a decent reach that can still be wielded one-handed, such as a rapier. Jokes about bringing a knife to a gunfight aside, in the small dimensions of an apartment, you will always have sufficient proximity to an intruder to have the upper hand over anyone who doesn't begin the encounter by pointing a gun at you, in which case you're scrod no matter what's in your arsenal. A sword is easier to learn how to handle, is much easier to maintain, is never unloaded, and if, heaven forfend, there should ever be a tragic accident involving your weapon, it is much harder to have a lethal accident involving a sword than a firearm of any sort. And any of the less-used lower tech weapons brings with it a psychological intimidation factor.

I'm in favor of gun rights, but I believe in having the right tool for a job. For home defence, in any home where the maximum sightline is less than 15 feet, that's a blade.

Here's how I responded:

Michael,

Defending your apartment with a sword? I'm fond of swords myself and own several high-quality blades, but I'll be going for a gun to defend myself. And that's from someone with the muscle and training to effectively use those swords.

We stopped using swords as serious weapons hundreds of years ago, and we did it for a reason: guns work better. Guns need less training, less physical strength, and are more effective at stopping an attack.

Since you're talking about "sightlines of less than 15 feet" I assume you are basing your thinking on the general assumption that someone within 21 feet with a knife can close and use the knife before a defender with a holstered gun can draw and fire. This is accurate as far as it goes, but it's far from the whole story. Just consider how well you would fare in the same scenario trying to draw your rapier!

One strike with a bladed weapon is not necessarily fatal, and one shot from a handgun is a lot more likely to end the fight permanently. There's no reason to give up the advantages of a firearm in favor of merely equalizing your defensive options against an attacker armed with a knife.

A firearm is not a magical talisman that will keep its owner safe from harm. It's just the best tool available for self-defense.

I confess to not being able to make up my mind whether Michael is a true believer in gun control trying to win points by conceding the concealed-carry issue (since it's not currently legal for ordinary folk in DC anyway), or actually thinks he's giving good advice.

Tue Jun 03 11:30:47 CDT 2008 by TriggerFinger. Comments [Tweet]

To Buy or Not To Buy

Jed points out Megan's (of Assymetrical Information) request for advice on the question of whether to buy a handgun while living in DC, assuming the Heller decision comes down in favor of DC's residents rather than DC's politicians.  I posted a reply that ended up going a bit longer than expected, so I am reproducing it here in case others are asking themselves similar questions:

Megan,

Congratulations on beginning to grapple with the challenge of providing for your own safety. It's every adult's responsibility, but DC has preferred to treat its residents as children for over 30 years.

Unfortunately, even if the Heller case is a victory, it's unlikely to turn DC's laws into a pro-gun utopia. The city is likely to immediately follow a Supreme Court decision with the most restrictive laws short of a total ban that they think will pass muster -- repeat until the courts become sufficiently bored.

Expect the city to try requiring licensing, registration, safe storage, training, possibly even magazine capacity silliness... all with as many roadblocks put into the process as they can come up with. What you get is likely to be determined at least partly by what they will allow you to have. The courts may strike down some or all of whatever requirements they pass, but it may well take years for that to happen.

Bear in mind that if you're willing to put up with that, it's already legal to own a shotgun, if you jump through all the hoops. Some would argue that a shotgun is better suited for your intent anyway.  I wouldn't, but some would. To get an idea, read The So-Called Capital of the Free World.

Even if they don't try to mandate a training requirement, plan to get some if you're a first-time gun owner or first time handgun owner. If you go to the appropriate NRA training course you won't have to try to sort out which of your commenters knows what they are talking about and which are just trying to convince you it's a bad idea for political reasons.

I don't mean to be discouraging but this is not likely to be a settled issue that can be treated casually in the District for some time.

All that said? The answer is YES, get a gun. Because it's your life, not theirs, and the government often needs to be reminded of this.

I can't say I'm happy with that answer.  Gun ownership is a fundamental, Constitutionally-protected right.  It should be very simple to exercise that right, with minimal government intrusion.  But, to risk a Clintonism, "should be" is not the same thing as "is".

If I lived in DC, I'd ask a lawyer to help if I intended to buy a handgun in the near post-Heller future.

Mon Jun 02 11:33:45 CDT 2008 by TriggerFinger. Comments [Tweet]

<-- Prev


Subscribe to Atom Feed

I am not a lawyer, and nothing on this site should be taken as legal advice.

This site is run on custom blog software and is being actively developed. Please be forgiving of errors.


This website is an Amazon affiliate and will receive financial compensation for products purchased from Amazon through links on this site.