Let the cowering commence!

It's already started over at NotionsCapital, which links to my series on the process of legally obtaining a licensed and registered hunting rifle within the DC area in support of a silly screed against the Heller decision, guns in general, and whatever else stumbles in front of the keyboard.  It deserves a fisking, because the disinformation is thick.
No one will be happy with the new District of Columbia handgun law. It is not stringent enough for handgun opponents, and will be abused. It will not please handgun enthusiasts: the registration process does not even have a drive-through window or one-hour service.
I won't argue that DC's proposed new regulations won't make anyone happy, but the reasons they will not satisfy gun rights advocates are quite a bit more substantial than simply lacking a drive-through.  The proposed process includes a vision test (which may well be struck down as discriminatory against the disabled), a written test (which should remind everyone of the infamous "literacy tests" once used to stop black voters from voting), a ban on semiautomatic handguns, a waiting period, and many other onerous requirements.
Handgun fanciers want the weapons As Seen on TV! ? the ones that never need reloading, don?t recoil, aim themselves, and always hit what they are pointed at. And they want them now.
Well, sure, those guns sound nice... pity they don't exist.  I'd settle for
the best currently available handgun technology, which is the basic semiautomatic handgun commonly carried by both the police and the military.  While revolvers are a step up from nothing at all, revolvers do not represent the best available technology -- and in fact a ban on semiautomatic handguns represents a ban almost as broad and sweeping as the one that the Supreme Court struck down in Heller

As for wanting them "now"... that's how a fundamental right works.  The government does not get to stand in the way and play parent.  How many people will die due to government-imposed waiting periods -- because they could not get a self-defense handgun before their attacker got them?
But semi-automatic handguns are classified as machine guns in the DC Code, and D.C. citizens will not be allowed to register them. The choice is limited to revolvers or single-shot target pistols. Too bad TV is awash in crime shows. If Gunsmoke was still popular, revolvers would in greater demand.
Never mind the absurdity of defining normal semiautomatic rifles and pistols as "machine guns" in order to mislead the public; that level of chutzpuh is par for the course in DC.  

Revolvers fire five or six shots and then need reloading. With semi-automatics, folks who cannot hit what they aim at after six tries can kill or injure up to thirteen innocent bystanders. No wonder everyone wants semi-automatics!  Under Washington?s new law, handguns must be kept in the home, so bystanders will certainly be family, friends, and neighbors. Of course, those are most often the targets of civilian handguns anyway.
How often have you read about a ordinary man defending himself in his own home who shoots the wrong person, no matter how many shots they fire?  While there are plenty of people who do stupid things with guns and hurt themselves or others, those are not usually actions taken in self-defense.  Civilian gun owners acting in self-defense tend to not need to fire their gun at all, and in the rare case where they must do so, they almost never hit an innocent bystander.  I can't think of a single documented case of an ordinary civilian doing so by mistake, in fact. 
Actually, one bunch of folks loves the new law. Local burglars are ecstatic. It is much easier to leave a break-in with a handgun than a bulky big-screen TV.
Funny, those are the same folks who are absolutely terrified of being confronted by an armed citizen defending his home with a handgun, many of whom have been captured and held for the police (not shot, mind you!) by one, or have had their friends similarly apprehended.  I don't imagine criminals will be celebrating, especially since illegal guns are not exactly scarce in DC.

Wed Jul 30 11:45:11 CDT 2008 by TriggerFinger. Comments [Tweet]

Smith and Wesson Commemorative Edition

Smith and Wesson has produced a special edition of one of their revolvers to commemorate the Heller v DC decision.  Some of the proceeds will be directed to the Second Amendment Foundation.  

Wed Jul 30 11:44:55 CDT 2008 by TriggerFinger. Comments [Tweet]

Heller v DC: The Sequel

According to Fox News, Heller -- the plaintiff in the original Heller v DC case which produced the first definitive Supreme Court ruling validating a 2nd Amendment right to keep and bear arms to individuals -- has chosen to sue the city of DC once again over almost the same issue.  This time, he's suing to challenge DC's continuing ban on the registration of magazine-fed firearms (any firearm capable of accepting a magazine of more than 12 rounds is classified in DC law as a machinegun, and will not be registeredl; this includes most semiautomatic handguns). 

The smart bets on this one suggest it won't reach the Supreme Court; it's likely to be struck down by the District or Appellate courts and cert to the Supreme Court denied (if DC even bothers to request it).

Still, this should be an interesting case to watch.  Itr's hard to believe DC can be so stupid about an enumerated right so recently confirmed by the Supreme Court.  I wonder if they are opening themselves to civil and criminal penalties for deprivation of civil rights under color of law?

Mon Jul 28 17:30:18 CDT 2008 by TriggerFinger. Comments [Tweet]

A bit of a kerfluffle...

.. about one gun owner writing inflammatory letters to the editor of a local paper.  People are asking whether he's stupid, insane, or just wrong... or if maybe he's right and everyone not saying so is a coward or a statist or something. 

Personally my feelings are simple: Anyone saying they would violently resist the government under conditions short of Hitleresque tyranny has got the wrong idea.  Any government that will confiscate guns door-to-door will first come knocking individually on the doors of anyone stupid enough to put statements about armed resistance out to a widespread audience, and they'll probably use those very statements as the reason they had to act. 

How many times have we heard the news reporting that the police raided someone's home, arrested the owner, and confiscated all his firearms... because of "threatening behavior" or "advocating violence against law enforcement" or similar phrases?  Unless you want to be that person, keep the rhetoric below the imminent threat level. 

If it should ever come to pass that exactly that kind of resistance is necessary, it won't matter how many times you've said you would resist on the Internet.  And it certainly won't convince anyone that gun ownership is desirable; quite the opposite.  It's a concession that you've lost the argument (or perhaps that your debate partner wasn't really listening).  When your arguments boil down to, "Well, you can't make me, and if you try, I'll kill you," most people aren't sympathetic... even if you mean every word.

Thu Jul 24 11:25:07 CDT 2008 by TriggerFinger. Comments [Tweet]

Heller's handgun application rejected...

It looks like Heller tried to register his 1911 and was denied.  That takes some serious stupidity on the part of the DC officials.  DC claims that the 1911 is a "machine gun" because it is magazine-fed and can accept magazines holding more than 12 rounds -- even though the standard magazine size holds 7 and the gun is a normal, semi-automatic (one shot per trigger pull) handgun.  There are lots of other new and onerous requirements.  I'll try to follow up with more later.

What are the odds that this sets up Heller v DC 2?  Pretty good, since he was originally planning to register his revolver and could easily have done exactly that.

Fri Jul 18 13:23:57 CDT 2008 by TriggerFinger. Comments [Tweet]

Robert Levy on Heller

Robert Levy was one of the original backers of the Heller case, back when it was a small one.  He has an article out describing the effect the case has had on 2nd Amendment law going forward:

Much of the majority opinion and the dissent by Justice John Paul Stevens focused on contrasting interpretations of constitutional text, structure, and history. Without revisiting those arguments, about which volumes have been written, I?d like to comment briefly on four issues that received less attention in the opinions, but which have significant implications for the future. (1) What gun regulations will now be permissible? (2) Will the Second Amendment be "incorporated" so that it can be invoked against state and local governments? (3) Did a purportedly conservative Supreme Court engage in judicial activism? And (4) what happens next on the political front?

The guy put his money on the line for us when the NRA wouldn't.  It's worth reading what he has to say.

Tue Jul 15 09:47:50 CDT 2008 by TriggerFinger. Comments [Tweet]

So how well was DC's registration system working, anyway?

According to this article, there are about 36,000 registered guns unaccounted for in DC.  It's not clear whether the total includes rifles and shotguns or only handguns.  What IS clear is that the government did not believe their registration information to be of any use whatsoever in solving crimes; they have allowed it to degrade to the point of uselessness.  Is a registration system for lawfully-owned firearms a useful crime-solving technique?  Evidently not.

Tue Jul 15 09:47:32 CDT 2008 by TriggerFinger. Comments [Tweet]

Volunteering to lose their next election

A number of mayors have volunteered to lose the next election by signing their names to an article supporting the DC handgun ban.  Here's the list:
Shirley Franklin is mayor of Atlanta. Contributing to this column were: Tom Barrett, mayor of Milwaukee; Manuel A. Diaz, mayor of Miami; Gavin Newsom, mayor of San Francisco; Greg Nickels, mayor of Seattle; and Douglas H. Palmer, mayor of Trenton, N.J.
Is your mayor on this list?

Wed Jul 09 10:34:52 CDT 2008 by TriggerFinger. Comments [Tweet]

David Hardy chat: Question 4

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.

TriggerFinger: How do you see the "arbitrary and capricious" language concerning licensing schemes playing out with respect to concealed-carry licensing? Chicago's laws are an obvious target (with a local official trying to pass a very brief amnesty reregistration period because he forgot to reregister his guns), but there are other obvious applications. I'm thinking of New York's only-the-rich-and-famous-may-carry, and California's maybe-if-you-donate-to-my-campaign licensing system.

Basically, I'm trying to see if he thinks the "arbitrary and capricious" language is suitable for requiring a shall-issue standard for concealed carry licenses. 

David H (davehardy): After incorporation, this might come into play (altho as noted above, Heller is a keep arms case, so the first challenges should be to bans on that rather than on carrying). Hard to see how a right can be restricted on an entirely arbitrary basis, i.e., whether a local official is convinced you have a "need," not further defined, to exercise it.

I think that spells it out pretty clearly.  Shall-issue concealed carry might ride in under the coattails of Heller, but only after we connect the dots in other cases first.

The full transcript is available here.

Wed Jul 09 02:31:43 CDT 2008 by TriggerFinger. Comments [Tweet]

This must be satire.

Surely, even a Chicago liberal can't really be calling for a Mommy and Daddy Government.

Tue Jul 08 10:44:30 CDT 2008 by TriggerFinger. Comments [Tweet]

Lott on Obama on Heller

John Lott takes apart Obama's shifting positions on the Heller case.  First he was for the DC handgun ban, now he's against it because it's unconstitutional, but he'll appoint justices in the mold of those who voted that the ban was in fact constitutional, even though as a Chicago legislator he voted in favor of even more draconian bans.  Right.

Mon Jul 07 11:19:43 CDT 2008 by TriggerFinger. Comments [Tweet]

Linguistic idiocy meets ignorance

A so-called linguist from San Diego has written about his linguistic analysis of the 2nd Amendment.  I'm not going to bother arguing about his linguistic claims; not being a linguist, even an amateur one, there's not much point.  However, the core of his error is not linguistic.  Instead, it's based on complete ignorance of reality.  Witness:

A connection of rationale between an absolute clause and a main clause requires that the absolute be true. Imagine an offer: "Today being St. Patrick's Day, I will buy drinks for everybody." If the speaker is mistaken -- it's not March 17 -- the offer is invalid. This is relevant because the absolute clause in the Second Amendment is actually false: in terms of meaning, it is a general statement (technically a "generic" proposition) akin to "A lion is a carnivore" or "Puppies are playful." You need more than a single counterexample to prove such general statements false. (One vegetarian lion does not disprove "A lion is a carnivore.")

But if you think about it, there are, and historically have been, a great many free states whose security has not depended on a well-regulated militia, including most modern states, as well as many states from different periods of history. The authors of the Second Amendment surely believed that the absolute clause they wrote was true, but it actually wasn't, even then, because of its generality.

The core of the argument here is that if the first clause is somehow proven false, the remainder of the sentence is rendered invalid or ineffective.  This doesn't really strike me as a linguistic argument at all.  Obviously a sentence stating a falsehood cannot be entirely true, but that doesn't mean that the correct judicial response is to void the entire offer.  Imagine the reception you would get from a bar after making the above offer and then telling the bartender that it wasn't a valid offer since you made it at 1am on March 18th instead of on St Patrick's Day itself.  In the formulation used, both clauses have some weight and impact. 

To properly express a binary condition, you would say "If today is St. Patrick's Day..." rather than "being".  So, to begin with, I have some doubts about this linguist's ability to conduct an unbiased analysis.  Especially since many linguists have analyzed the 2nd Amendment and come to very different conclusions.

Now, it's worth noting that in a specific context the author's interpertation has some validity.  When trying to win an argument with an authority figure making a decision, if you can demonstrate that the decision is based on invalid assumptions, it can help in convincing the authority figure to change his mind.  The idea in that case would be to go before a judge and argue that, because the reason for the decision is based on invalid data, the outcome of the decision should be changed.

However, that is much more relevant when dealing with an actual decisionmaker who has the power to change his or her mind.  The 2nd Amendment is a legal construct ratified by the people, and there is a defined mechanism for making changes to it: the amendment process.  The decisionmaker here is the people, not an individual judge who might take it upon himself to change the decision of the people because he believes the reasoning behind that decision invalid.

Make no mistake -- down that road lies judicial tyranny.

However, for the sake of argument, grant that perhaps -- if the first clause can be proven wrong -- then the right to keep and bear arms may be subject to some form of jeopardy.  Is it actually wrong?

For the United States at the time of its founding, the statement "A well-regulated militia is necessary to the security of a free State" is inarguably true.  We had obtained our free State through the use of arms in the hands of a well-regulated militia.  We had no other means to keep it at the time.  Since that time, we have never been without a militia, even if its regulation has been left mostly to chance.  So, for the United States, there is no counterexample. 

Well, that's not true.  Almost no counterexample.  We have one major city under direct federal control that has been without any form of militia, well-regulated or otherwise, for 32 years.  We have the subject of the Heller case itself, the District of Columbia.  How free is the District of Columbia?

It's citizens are subject to door-to-door "voluntary" searches by paramilitary troops.  Those same troops set up barricades around neighborhoods to demand identification and a reason for travel in or out.  Video cameras monitor every movement in major public areas. 

Let's look at some other historical examples of places that never had, or surrendered, their militia. 

Germany, under Hitler, instituted strict firearms laws that included confiscation (after a previous government had put into place a registration system).  As a result those most at risk from the government's forces had no means to resist.  Certainly Germany cannot be characterized as a free state.

What about England?  It's safe to say that the UK has almost completely eliminated (in law at least) any right to arms that its people once had.  Children are punished for refusing to pray.  Adults are imprisoned for defending themselves from burglars.  By any reasonable measure, England is no longer a free state.  That they are not yet a totalitarian dictatorship is small comfort. 

That's by modern standards.  By the standards of our Founders, there may well be no free states left in the world. 

Mon Jul 07 11:11:10 CDT 2008 by TriggerFinger. Comments [Tweet]

What is it with people who live in gun-control "utopias"?

They always seem to feel that their little petite tyranny will be absolutely destroyed if you allow the peasants to own firearms.  Yet somehow, they never realize that generally, the crime rate is so high in the land they claim to rule that whatever they thought they were doing about crime wasn't working.  They get so angry about it.  It doesn't make any sense to me.  It's like they are afraid that the people might not need their protection anymore.  And that could lead to things like... people actually voting for someone else rather than the self-ennobled Mayor Daley. 

You think I'm kidding about the whole nobility thing?  Chicago has a handgun ban.  Like DC's, it functions by requiring handguns to be registered, grandfathering handguns already registered at the time it was enacted (1982), and forbidding new registrations.  It also requires that any grandfathered handguns be re-registered yearly.  One of Daley's dukes on the city council recently forgot to re-register his guns, which would make them illegal.  The solution?  Well, because it's one of the nobility, we'll just pass a new law to open the registry again... just for this year... so anyone who forgot to reregister can do so. 

In practice, the law might as well say "peasants need not apply."
"Does this lead to everyone having a gun in our society?  If they [the Supreme Court] think that's the answer, then they're greatly mistaken. Then why don't we do away with the court system and go back to the Old West, you have a gun and I have a gun, and we'll settle it in the streets if that's they're thinking."
The mayor is obviously not paying attention.  He's making arguments against concealed carry, not arguments against law-abiding citizens possessing firearms in their homes.  Never mind that when concealed-carry laws are at issue, they work and the streets do not run red with blood.
"We think we're such an improved society," he added. "The rest of the world is laughing at us."
You know what?  I don't care what the rest of the world thinks.  The rest of the world has been laughing at us ever since we kicked King George's sorry ass back over the atlantic and declared a Republic of free men.  And we've been getting along just fine since then, except in cities like Chicago where the elected nobility have disarmed their subjects in a failed attempt to recreate Europe.
In railing against the Supreme Court ruling, Daley stressed the danger of private gun ownership, especially for the children of gun owners.

"We've shown time and time again how many children have been killed in their homes by guns," he said. "Parents are away, they get the gun. Parents are away, the child takes the gun, runs out in the street and has an argument, comes back and shoots somebody."
Actually, what Daley has stressed time and time again is that some children are killed by guns.  That's undeniable.  What he hasn't stressed is the number, because that number is very very small.
"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms," the brief states.
How's that gun ban working out for you with that?
"From a law enforcement perspective, this [the Supreme Court decision] will no doubt make a police officer's job more challenging than it already is," Chicago Police Supt. Jody Weis said, "particularly since a firearm is used in 75 percent of all murders committed in the city of Chicago."
Right then.  It's not.  75% of all murders with a gun ban in place

Mon Jul 07 10:10:23 CDT 2008 by TriggerFinger. Comments [Tweet]

Dave Hardy Chat: question 3

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.

TriggerFinger: Other bloggers have written about the inherent contradiction in allowing bans on arms not in common use when the most obvious class of such arms are not in common use precisely because of federal regulations that amount to a ban on new manufacture of weapons in this class. Tactically I understand that that's NOT the issue to press right now. However, the longer the '86 ban on top of the '34 and '68 restrictions are in effect, the weaker our case under "in common use." How do we get out of the bind, when the time comes? Or do we just have to hope for a better court or a legislative fix?

I can't really take credit for this question.  I think it was Snowflakes in Hell that pondered it.  But I can take credit for asking someone who might be able to answer.

David H (davehardy): That IS a logical problem! We have a similar one in the 4th Amendment. Prohibition on unreasonable "searches." How does that restrict wiretaps, etc. that don't involve a search? Court has held it extends to cover a "reasonable expectation of privacy," e.g. on the telephone. That, too, has a circularity problem. If the gov't announces it is randomly tapping every phone, does anyone have a "reasonable" expectation of privacy. I suspect it comes under the "you know what we mean" doctrine of judicial construction.

The comparison to reasonable expecation of privacy in wiretapping laws is a good one.  I've run into similar issues before; consider, for example, the transmission mechanism of email.  As currently standardized, email is about as secure as a postcard -- anyone who can look at the email while it is "in transit" from sender to recipient can read the contents.  This generally includes at least two internet service providers (including all their staff) and often a number of other "backbone" providers who link the two isps.  Usually, once it arrives, an administrator can read the contents.  Depending on the network design, it's possible that anyone on the local network (for example, anyone on the same floor of the building or same group of offices) could read the email as it was transmitted.  For web-based email, logging in to read the email provides yet another opportunity to learn the contents. 

And on top of all this, there's a law passed under the Clinton adminstration and expanded under Bush known as CALEA that mandates telephone companies make it possible for law enforcement to wiretap their lines "easily".  If I remember correctly, the required capacity is something like being able to tap 1% of all the current phone calls in the US.  Under Bush, this law was expanded to cover internet service providers in ways that I don't believe have been released.

And yet people have a very strong expectation of privacy about their email exchanges, and systems adminstrators know this and respect it.  It's not technically very private, but socially, it's treated as such.  At least some of the lack of privacy is due to government action.  So does the test consider the real privacy afforded by technical means -- ie, very little?  Or does it consider the expectation -- a lot?

I don't know.  (My solution is to fix the technical problems with the email system so that it is as private as people expect it to be).

The full transcript is available here.

Thu Jul 03 12:36:19 CDT 2008 by TriggerFinger. Comments [Tweet]

Second Question from the Dave Hardy chat

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered. 

TriggerFinger: Second question. The more-liberal side of the court is famous for reading rights into the "penumbras" of the Constitution. Would it be fair to read similar implications into any common federal gun control laws not referenced by Scalia as permissible? I'm thinking in particular of Lautenberg's domestic-violence rules, which came close to the brink in US v Emerson and which, as I recall, was notably absent from Scalia's list. (at least as summarized in the syllabus -- still working through the whole opinion)

It should be pretty clear what I'm getting at here.  What Scalia leaves off his suggested "ok list" for gun control is a ripe target for challenge precisely because it's left off and we won't have to argue with a recent Supreme Court "suggestion" even in dicta. 

David H (davehardy): Possibly. I did notice that Scalia omitted mention of Lautenberg. That wouldn't be significant in a purely legal sense, but suggests to that Scalia at least has heartburn with it, and the four Justice who joined him did not suggest its mention.

And it seems that Dave is thinking the same thing.  Left unstated is the effect that US v Hayes will have on the law:
In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship ? that is, as a spouse, parent or guardian.
It's hard to get a good plaintiff for a Lautenberg case.  This case was picked by the Justice Department rather than our side, and the plaintiff is not one that I would have chosen, though the court grants certiori for its own reasons.  Are they planning to use this case to strike down the ban?  Probably not, even if Scalia left the rhetorical door open.  But it's possible.

I wouldn't be surprised to lose Hayes (especially since the 2nd Amendment question isn't presented at this point) and win a subsequent case involving a restraining order rather than a conviction.  Nor would it surprise me to see a ruling indicating that the 2nd Amendment requires careful dotting of i's and crossing of t's in order to uphold any regulations -- sort of a "you didn't get this case quite right, please come back later with your paperwork in order."  Reading tea leaves from the Court is not always easy. 

Clearly, though, I'll have to pay attention to the briefs in this case to see if and how the issue gets raised.

The full transcript is available here.

Wed Jul 02 09:23:58 CDT 2008 by TriggerFinger. Comments [Tweet]

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