A Law Student's Attempt to Understand It All.

Saturday, June 28, 2008

Celebrating with Guns

I have celebrated Heller this weekend. I went shooting with my Dad on Friday. He shot his Glock and I shot my Taurus. We had a good time and angered Obama in the process. What a deal!

Then, I attended the sixth annual Independence Institute Alcohol, Tobacco, and Firearms Party. This is our chance to celebrate the fun of being an adult-- while it is still legal. We shoot guns (shotguns on a sporting clay course). We smoke cigars and cigarettes. We drink alcohol. (No shooting after the alcohol, in case you were wondering). We celebrate liberty and the FUN of being an adult (until the nannyists stop us).

Some highlights:

Deer Me!: Stand 9 featured a “rabbit” target, and thus shooters were aiming at the ground for that station. Deer have never been known for their intelligence. The deer slowly mooned across the shooting lane of Stand 9. The deer did not take the large amount of 12ga. fire as a clue that maybe he didn’t want to be there. We released a clay to scare it away. Instead, the deer got the classic “deer-in-the-headlights” stare at the moving clay. I was quite tempted to shoot the deer and put it up on my wall. (Note: there was a sign that prohibited shooting of live birds, but nothing prohibited shooting medium game.) Finally he wandered away and my group could continue attacking the clays.

Heller Celebrated: The expert on the Second Amendment happens to work for the Independence Institute. David Kopel was at the counsel’s table during the oral arguments of DC v. Heller. He gave a great presentation on how it was as best as gun people could hope for, and what the pro-gun lobby would be doing to further the cause (including suing Chicago and San Francisco over their gun bans). He received a standing ovation, and deservedly so.

Jonathan Hoenig: Jonathan Hoenig, the founder of CapitalistPig LLC, gave a fantastic speech on the role of the welfare/nanny state and how it makes us, as a community, poorer. It was entertaining and informative on the real economic impacts of false “government safety nets.”

The ATF party is a great event and will be on my calendar every year in the future. It is a fantastic chance to get to have fun and meet with like-minded people (maybe there I can find a woman to be my wife on day). We get to anger the nannyists who want to run our lives.

Slam it. Smoke it. Shoot it.

Thursday, June 26, 2008

Guns and DC v. Heller

The SCOTUS has handed down the biggest case of the year: DC v. Heller (opinion here). Justice Scalia, the most philosophical/logical of the conservative justices, wrote the majority opinion. Had Kennedy wrote the opinion, the reasoning/protection of the rights would not be as strong. Justices Stevens and Breyer wrote dissents representing the four liberal justices. The opinion is long, so I give a brief synopsis here. My full(er) discussion is below.

Synopsis: I am happy with the fist holding (2d Amendment is an individual right). I understand the reasoning behind the second holding (allowing limits on the right) but am weary that it could lead to back door bans. I am happy that the third holding strikes down the DC gun ban. Yet, the holding still allows for licensing programs and that is dangerous (DC had a gun licensing program, but simply never issued licenses). This was the best the pro-gun side could hope for. There is still going to be a lot of litigation to flesh out the limits of the right and or the limits of the government to regulate the right. The second and third holding in particular have some troubling caveats to the general rule. Yet, the opinion was well reasoned and fairly exhaustive and will provide a launching point to challenge other silly gun laws.

Admittedly, I am an extremist when it comes to the second amendment (and constitutional protections generally). Thus, Scalia didn’t give me all that I wanted, but the opinion is certainly the absolute best the pro-gun rights side could hope for. It is a good day. Also, this commentary is long, but so is the decision (157 pages). It is difficult to compress all of the information.

The post below has my full(er) discussion.


Full(er) discussion of DC v. Heller:

1. “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
2. “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
3. “The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.”

The first holding, that the Second Amendment is an individual right is fundamental. Had the court gone the way of the liberal justices, the second amendment would apply to the National Guard only. Scalia did a good job going through the history of the meaning of the purpose clause (“A well regulated militia…”), the operative clause (“the right of the people to keep and bear arms shall not be infringed”), and the relation between the two. Of particular note, Scalia does a good job of refuting the dissents’ contentions that the second amendment applied only to militias.

The first holding is so important because it gives the foundation on which to challenge/examine other gun laws. Not only does this case establish the individual right in the SCOTUS jurisprudence, it also gives a through justification for why it is a right. Also, the Court does not rely on “hunting” or “target shooting” as the rationale for the right, but one of personal security. That will be key in future cases.

The second holding, “Like most rights, the right secured by the Second Amendment is not unlimited,” troubles me a bit, but the rationales are actually pretty reasonable. Laws the prohibit felons and the mentally ill from possessing firearms and the like are expressly upheld (generally) by this ruling. I’m still bothered by Scalia’s upholding of banning guns at “sensitive places” like government buildings and schools only because the list of “sensitive places” keeps expanding. (Like I said, I’m an extremist in this area, and the discussion of which places should be able to ban guns is for another day.)

So too with the discussion of Miller, which was a case 70 years ago about a sawed off shotgun. The “unusual and dangerous” exception can make sense (really, the argument for allowing possession of RPGs, tanks, and claymores is on somewhat shaky ground). Historically speaking, the militia that won the Revolutionary War did so without the latest in military technology. While the language under this holding seems to indicate that the M-16 type tactical weapons may be banned, I think the language under the third holding may save the right to have “military looking/style” weapons (more on that later).

However, it is a real danger in the opinion’s language that modern military weaponry may be banned. It may come back as a back door ban on guns. For example, the Mexican Constitution allows for the right to bear arms that are not militarily useful. Since militaries use all sorts of calibers for various purposes, the end result of the Mexican law is that a Mexican citizen can only have a .22 which is useless in most self-defense situations. Most other calibers have been adopted by the Mexican military at one time or another and therefore are banned to the general populace. If we are not careful, that same reasoning could be applied under the language of the second holding in this case.

The third holding actually pertains to the Draconian gun ban in place by DC (Chicago and San Francisco have similarly harsh laws). It is important to note that DC is a federal district and therefore this ruling does not necessarily apply to states and normal cities.

Since the first holding established that the second amendment pertains to the right of self defense and guns are included in that right, then DC cannot outright ban handguns. What is interesting is that Scalia bases his rationale on the fact that handguns (as opposed to long guns) are overwhelmingly the choice for most Americans for self defense. This is where I think that the AR-15 and other “military style” semi autos will be found to be okay. Since so many people choose to buy them for home protection, then, under the reasoning of this third holding, the military style rifles cannot be banned (does not apply to full auto). This of course is reading into the text, but that is where I would start my argument in a future case to stop bans on semiautomatic rifles. This may be the saving grace from the problem that Mexican citizens face.

The third holding strikes down the outright ban on handguns in the home, the requirement that long guns be disassembled and have a trigger lock on at all times, and other nonsensical laws. One of the worst parts of the DC law was that a homeowner could not move his gun from room to room in the house. Wherever the gun was when the law was enacted in the 1970s, it must remain for all time.

I am bothered by the Court still allowing “licensing” of guns in DC. To license is the ability to restrict and ban. Indeed, DC had a licensing system—but NO ONE was ever granted the license. Thus, it was a practical ban. The court did not really address this problem and it should have. I suppose that’s another day’s litigation.

Scalia failed to explicitly state which standard of scrutiny the Court would take in examining gun laws. Of course, I want the strictest (“strict scrutiny”) that would make the government show a compelling state interest in the law-- which is a very difficult test to pass. The dissents wanted the lowest level of scrutiny: rational basis (asking, “Did the government have a rational reason for this law?”-- which almost any law can satisfy). Reading the tea leaves, it appears that the Court wants something higher than rational basis but I doubt the votes will be there for strict scrutiny. They may settle on something in between (intermediate scrutiny of some sort) in the future.

This was the best the pro-gun side could hope for. There is still going to be a lot of litigation to flesh out the limits of the right and or the limits of the government to regulate the right. The second and third holding in particular have some troubling caveats to the general rule. Yet, the opinion was well reasoned and fairly exhaustive and will provide a launching point to challenge other silly gun laws.

Monday, June 23, 2008

Who Polices the Police?

SCOTUSblog does a great job of covering the Supreme Court Of The United States. In a recent article about the grants and denials of certiorari and various other orders, one case thrown in at the end caught my eye.

The case of Arizona v. Johnson (No. 07-1122) intrigues me. The issue is:

Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

According to a passing reference in the New York Times,

A Tucson police officer testified that she had searched a passenger, Lemon M. Johnson, because he was wearing gang colors and seemed dangerous, not because he was suspected of having committed a crime.
The search yielded a gun and marijuana. An Arizona appeals court overturned Mr. Johnson’s conviction, saying the evidence against him should have been suppressed because the search was unconstitutional.

The SCOTUS jurisprudence is very complex for Fourth Amendment searches for occupants in a car. Due to the late hour, I cannot recall the exact names of the landmark cases (please feel free to help out in the comments section), but Fourth Amendment priciples are generally based on a balancing test. On one side is the individual's interest in "privacy" (really, his interest in not being molested/abused by the police) and on the other side sits the police officer's interest in self protection.

Certainly, as the gang shootout last night near the DNC's convention site demonstrates, the police have legitmate security concerns. (However, they get to carry guns and handcuff people too, so they are far from defenseless.)

Yet I cannot help but believe that our rights are very important. We do not want the police state that the United Kindom has become-- where big brother watches over your shoulder and it is a crime for old men to wear a hat lest they "hide their identities."

Lest you think I'm jumping too far: look at what the officer identified as the "basis to believe the passenger might be armed and presently dangerous." She said he was wearing gang colors. Guess what folks, gang colors encompass just about every general color possible. Indeed now police are saying that gang members no longer display their colors to avoid police detection. In other words, anyone wearing any color or "looking dangerous" (whatever that means) can be searched in a car they are riding in if the SCOTUS upholds the police officer's actions.

Based on the SCOTUS' tendancy to defer to the police, I suspect that the officer's actions will be upheld. Remember that it is police officers who serve as security detail for high-ranking judges (in the case of the SCOTUS, it is the Secret Service) and thus, in a very real way, the judges' lives depend on the police. That is why the judicary is so deferential to the police.

I do not fully know the facts of the case and I suspect that the suspect was a gangbanger scumbag, but rights need to be upheld for everyone, otherwise they apply to no one.

Wednesday, June 18, 2008

Climate Change Killed Elvis

A contributor to Discover Magazine online has an interesting theory on the tomato scare.

Apparently, "climate change" causes everything. Perhaps my foot is itching because of climate change. Maybe climate change caused my computer to freeze last night. I know, climate change is what killed Elvis!

The writer's claim that "genetically modified organisms" (GMO) are also partly to blame. Some background for those of you who are not biology/agri-science nerds: the US is one of the biggest producers of genetically modified food (i.e. plants, not animals) in the world. Through the use of genetic replacement therapy, we have been able to use plant viruses to change the DNA of a plant to be resistant to bugs, grow faster, or even choke out weeds. While the means we use to accomplish these goals (DNA modification) is new, the idea is not. Farmers once selectively bred their crops for certain characteristics.

Now, there is a global debate on the safety of the modified food. The environmentalists claim that it is "not natural" and therefore bad. (By the way, Salmonella is natural and bad, but an autoclave is unnatural and good.) Mostly fanned by the Europeans, who have an economic interest in stopping US food exports, many third world nations refuse US genetically modified food-- despite starving families.

Now, back to the claim that GMOs are responsible for the current tomato scare: the writer fails to show how exactly GMOs "exacerbate" the problem. He lays a claim, and then gives no evidence or argument to back it up. Indeed, he even admits that the outbreak could have "natural" causes not related to GMOs.

In the end, environmentalists hate two things: people (except themselves) and technology. They have stated consistently in their literature that people (overpopulation) are the cause of all their professed problems. Sure, they talk about investment in new technology for energy, but the reality is that they want fewer people and a return to an agrarian life with little in the way of technology. The most extreme example is the hippie commune.

We have returned to the lie of the nobility of savagery.

Tuesday, June 17, 2008

Lying Government

The Rocky Mountain News reported today on a series of sightings. Before you go all UFO on me, wait. It appears that Special Operations Command was running a series of training exercises in the Denver area.

What shocked me was the line:
"Military and police officials dismissed reports that the exercise was preparation for the Democratic National Convention coming to Denver in August."
OF COURSE this was a training exercise for the upcoming Democratic National Convention! For one week, Denver will be one of the biggest terrorist targets in the nation.

This is why I will boycott Denver during the DNC. Yes, I do have a mild fear that there could be an attack (this is the world we live in now). Also, though, I would be working next to the "Free Speech Zone." The chanters and protesters will be an annoyance. Some groups have promised violence. Who needs to deal with all of that just to go to work in an office with broken a/c?

Nah, I'll take a vacation instead.

Monday, June 16, 2008

Banana Car

Breitbart.com pointed me to this recent AP story.

I know that whenever I travel looking for bananas, I am always ready to pay those high grocery store prices. Perhaps they were intending to shop at 7-Eleven.

P.S.: At the going rate of ~$1.65 per pound (cited in the story), the men would be buying approximately 225,454 pounds of bananas. Assuming they are medium bananas, that would be approximately 676,364 bananas total.

Monday, June 9, 2008

Why I Do Law

A relative of mine is in the hospital. She was supposed to go in for a quick procedure and be out within twelve to forty-eight hours. She has now been in for nine days. The surgeon unnecessarily delayed in performing the procedure, despite recommendations from her primary care physician and the Emergency Department physician who recommended the procedure. That was an annoyance.

The true problem arose when the staff physical therapist failed to do her job. My relative had orders from the medical attending to receive physical therapy twice per day. In the nine days she has been in the hospital, the physical therapist has spent a grand total of twenty (yes, 20) minutes. As any medical professional will tell you, if a person does not get out of bed and use their muscles, then the muscles will begin to atrophy within a day.

My relative could walk when she went to the hospital. Now, she cannot walk. People are not supposed to get worse when they stay in a hospital.

When we expressed our concerns with the physical therapist, she began to talk over us and then proceeded to blame my relative for not “alerting her” when she failed to return. Yes, that is right, a bed-bound person recovering from surgery is supposed to chase a flighty physical therapist down the hallway.

Well, the “house manager” was eventually called. When he came, I put on my lawyer hat and represented my client. I was able to calmly and rationally explain our concerns about my relative’s treatment. I then discussed the physical therapist’s failure to hear our concerns (i.e. she was filibustering). Finally, I emphasized that it is not the responsibility of a bed-bound patient to chase someone down the hall to beg the therapist to do her job.

My relative was relieved that I stepped in to explain what was going on. The house manager promised a meeting and that someone else would take over my relative’s physical therapy.

Yesterday I was an advocate. Yesterday I made a difference. This is why I’m in law school.