Currently Browsing: Law
Jan 8, 2016
Texas Governor Greg Abbott is going to ask the Texas State Legislature to call for a Constitutional Convention, growing the number of states who have already called for one. In addition, he’s laid out a number of proposed new amendments in excruciating detail. Key features are:
- Prohibit Congress from regulating activity that occurs wholly within one State.
- Require Congress to balance its budget.
- Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
- Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
- Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
- Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
- Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
- Give state officials the power to sue in federal court when federal officials overstep their bounds.
- Allow a two-thirds majority of the States to override a federal law or regulation.
Most of these would represent improvements, but I think number six is a bad idea. It’s a bad enough idea I’d reject the whole proposal just to get rid of this bad idea. If this had been in place, Heller and McDonald would have both lost. You could go through and find numerous other cases that have expanded civil liberties that would have lost.
I’ve never agreed with conservative arguments about judicial activism and judicial restraint. Much of what conservatives call judicial activism are judges doing their jobs. If you ask me, the Court is far too respectful of democratic prerogatives of legislatures.
Perhaps the answer is to subject the federal courts to more democratic accountability. I’ve become convinced more recently that perhaps the founders were wrong to make federal judges appointed for life, with no recourse for the people. I’m open to action on this front, but not the kind of populist, judicial minimalist garbage Abbott is proposing here.
Dec 22, 2015
From an LA Times piece, we get the following quote on why President Obama is looking into unilateral executive action on gun control:
“If this succeeds, it will save lives. If it fails legally, the cost is only political,” [Senator Christopher] Murphy [D-Conn] said. “When you’re talking about weighing lives saved versus political capital lost, it’s a no-brainer.”
What Senator Murphy says about political capital is true – the cost of this effort will be counted in political capital. What he’s not saying is that it’s not the President’s political capital that will pay; it’s the political capital of the Democratic party. The President has spent a lot of political capital over the past 7 years, but very little of it has been his own. It’s been the capital of the Democratic party. And by gambling with the Democratic political capital, he’s been able to force the Republicans to match, raise, or fold. If he wins, he gets the credit (and the capital). If he loses, well, it’s all someone else’s fault. Which is a neat trick. I’m still a little surprised that the congressional Dems are willing to let him draw on their capital to put his name on successes, but leave Congress the failures. The last few years, sticking Congress with the failures means sticking the Republicans with it, admittedly, but still.
This is another one of his Heads I win, tails You lose gambits. He’s going to try, and if it doesn’t work, then it’s the work of The Enemy, who wants Dead Babies.Which makes sense for his future aspirations (global talking head), but is yet another drip of corrosive in the mechanism of politics. Après moi le déluge, indeed.
Dec 16, 2015
For a lot of reasons, I have to agree with Eugene Volokh’s opinion on the matter. I don’t agree that enacting a restriction on one constitutional right to protect another is the right thing to do. But it is a strategically smart thing to do if you’re interested in sticking it to the organizations that represent the medical profession, and have been promoting all manner of anti-gun propaganda via the power and influence doctors have over society. That’s what I think the strategy was here. I can’t support it, but I can see the logic.
All this would not be an issue if the doctors would agree that the practice of medicine should not be politicized in the way it has.
Sep 23, 2015
(With my best Capt. Renault impression).
So, the ATF went and sent a letter (PDF link) to the manufacturer of Can Cannons that said their product was not a firearm, but that attaching it to a rifle receiver made the rifle a Short-Barreled-Rifle, or attaching it to a pistol receiver made the pistol an AOW. Cue Internet Rage(TM).
As you might have gathered, I’m not at all surprised by this determination. This device does not, after all, stop the receiver from being a “firearm,” being basically a variation on a blank-firing-adapter. And it’s shorter than 16″ (short-barreled), and a smoothbore (AOW for pistol). This is a consequence of the Can Cannon being a accessory to what is legally a firearm. If they had instead built it as a complete unit, completely unable to fire conventional ammo, things might be different. As it is, though, an AR-15 doesn’t stop being a firearm when you mount a Can Cannon on it.
This is just another reminder of how mind-numbingly stupid the patch to NFA’34 to allow handguns, but still effectively ban anything that could be considered a handgun but isn’t actually a handgun. (That sentence hurt just as much to write as it does to read, I assure you, but was the only way I could express how I understand the history of the Act.)
On the other hand, I am a little surprised they didn’t just rule the assembled weapon as a Destructive Device (that bore is way bigger that 0.50″)
EDIT: The ATF Determination Letter
Sep 4, 2015
This is sort of an off topic post, but it ties back to guns in the end, I promise. By now most of you have heard the controversy over Rowan County Kentucky Clerk Kim Davis not issuing same-sex marriage licenses, and being jailed for contempt of court for refusing to obey court orders to issue them. A lot of conservatives have been arguing that to jail Ms. Davis, but not to jail anyone involved in failing to enforce immigration laws in sanctuary cities, amounts to a double standard. On the surface, it might seem like the same issue, but they are subtly different, and legally quite different.
First, we go back to the time before the Civil War, and before the 14th Amendment. Under the original constitution, the states were understood to enter into the union with their sovereignty intact, with both the federal government and state governments being separate sovereigns. So how does this work in practice?
In 1793, Congress passed the first Fugitive Slave Act. A number of states actively undermined the Act by refusing to enforce it. In the early 1840s, the Commonwealth Pennsylvania was sued, and the case went to the U.S. Supreme Court. The Court ruled that while federal law was supreme over state law in this area, the states were under no obligation to enforce federal warrants against runaway slaves, or to otherwise enforce federal law. This is pretty much directly applicable to federal immigration warrants. San Francisco is no more obliged to enforce federal law than Pennsylvania was in 1842. But this is not the end of our story, because something very calamitous happened, and that was the Civil War.
The 13th, 14th, and 15th Amendments are known collectively as the Reconstruction Amendments. The Thirteenth Amendment abolished slavery, and the Fifteenth Amendment provided voting rights for black men. But the Amendment we’re really interested in here is the 14th, which provides that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This was a radical idea. So radical the Supreme Court would mostly redact it out of the constitution. It wasn’t restored until later in the 20th century, and even today it is not fully restored. What the 14th Amendment essentially did was waive the states sovereignty to a limited degree. When it comes to protecting rights and equality before the law, the federal government is supreme over any state law. This was the intention of the people who drafted the amendment in the first place.
Kim Davis is in jail for contempt because the Supreme Court ruled that same-sex couples had a due process right to marriage under the 14th Amendment. San Francisco officials are not because immigration is a matter of ordinary federal law. A lot of ink has been spilled about whether the Obergefell decision was right or wrong, or about whether it should have been decided as an equal protection issue rather than the strange reasoning Justice Kennedy used in his opinion. But that’s neither here nor there, because legally same-sex marriage is now a right, and state officers can’t interfere with its exercise by denying marriage licenses (one can wonder why marriage licenses are constitutional in the first place, but that’s another post).
I said I would tie this whole thing back into guns. Well, I won’t tie it back, the Supreme Court already did in 1997 when it handed down its opinion in Printz v. United States, an NRA funded case challenging the constitutionality of the Brady Act. The Brady Act made a key constitutional error, in that before NICS was in place, it required local police and sheriffs to conduct background checks on prospective gun purchasers. Most police departments were overwhelmed, because the gun control crowd has never understood that buying gun isn’t solely the domain of a small handful of nutty extremists, but something ordinary people do every day. Jay Printz was a Montana sheriff, and sued the federal government arguing that as an agent of the State of Montana, he was under no obligation to enforce the Brady Act. This case bought us into the modern era of the anti-commandeering doctrine.
The idea that the states can’t be forced or commandeered to enforce federal law is pro-freedom. As gun owners, the states act as a bulwark against future infringement by the federal government on our Second Amendment rights. Sure, the feds are always free to enforce their own laws, but the truth is the feds don’t have the resources to counter widespread civil disobedience on the part of gun owners to whatever gun control schemes they may concoct in the future. Enforcement of federal law generally requires willing cooperation by the states. There will be times when you might not agree with a state’s defiance of federal law or policy, but as someone who believes strongly in a limited federal government, I would never argue the states simply don’t have the right.
Aug 25, 2015
Despite the fact that the Supreme Court ruled that the Second Amendment right was a fundamental right, there is still an open question about whether or not it’s a fundamental right of personhood, like freedom of speech, or a citizenship right that can be restricted to non-citizens, like voting. Preexisting Supreme Court precedent essentially made Second Amendment rights for permanent residents a slam dunk after Heller and McDonald, and we’ve seen the courts have been favorable to that idea. For non-resident aliens, it’s a different matter. If it’s a citizenship right, then they can be barred from exercising that right, the same way they can be barred from voting.
Most of the rights protected in the Bill of Rights are fundamental rights of people. The idea of voting being a right at all was an alien concept until very recently. The 7th Circuit recently ruled that non-citizens have the right to bear arms, but that 18 U.S.C. 922(g)(5) was a permissible restriction. This makes me question whether or not someone in the country on a non-immigrant visa, but here legally, would have a reasonable chance of challenging 18 U.S.C. 922(g)(5)(B). Remember, it is technically illegal (felony illegal, in fact) to take a foreign national who is not here on an immigrant visa shooting. This is not usually enforced, but it is the law.
I would imagine an originalist analysis would have to look at the public understanding of the right at the time of ratification. The issue there is the concept of an illegal immigrant may have been foreign to the population at the time. Prior to about the late 19th century, there was virtually no federal laws controlling immigration, yet as early as 1798, Congress did pass a law that allowed for deportation of aliens that were “dangerous to the peace and safety of the United States.” Of course, it also restricted free speech and was roundly condemned by Thomas Jefferson. We know them as the Alien and Sedition Acts. It wasn’t until the 1870s and 1880s with the Page Act and Chinese Exclusion Act that Congress asserted a power to control immigration as well as naturalization at the federal level. You had Congress exercise at least some level of control over immigration with the Steerage Act if 1819, but that was just a reporting requirement. Prior to the existence of the United States, many of the colonies had their own immigration laws, most of which encourage immigration from Britain and Germany, but largely excluded Catholics. I’ve read articles arguing that Congress originally had no power to legislate on immigration, which would leave it up to the states. A question is how many states did so. But I’m also not sure that just because Congress didn’t exercise that power until 1875 didn’t mean they weren’t understood to have it.
My feeling is that the founding generation probably understood non-resident immigrants to have full Second Amendment rights, but in today’s political environment that seems untenable.
Aug 12, 2015
For the past few days, we’ve been waiting to see the text of Senator Cornyn’s bill. It has not appeared yet at Thomas, but I managed to find it in the Congressional Record. It is not a short bill, but quite a lot of it is really just related to mental health, and has nothing to do with gun laws. I find the NRA’s statements about the bill to be credible. S.2002 would give us, for the first time since the Gun Control Act passed, a very precise definition of what it means to be “adjudicated.” The meat of the bill is here:
SEC. 302. DEFINITIONS RELATING TO MENTAL HEALTH.
(a) Title 18 Definitions.--Chapter 44 of title 18, United
States Code, is amended--
(1) in section 921(a), by adding at the end the following:
``(36)(A) Subject to subparagraph (B), the term `has been
adjudicated mentally incompetent or has been committed to a
psychiatric hospital', with respect to a person--
``(i) means the person is the subject of an order or
finding by a judicial officer, court, board, commission, or
other adjudicative body--
``(I) that was issued after--
``(aa) a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person had an opportunity to
participate with counsel; or
``(bb) the person knowingly and intelligently waived the
opportunity for a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person would have had an opportunity to
participate with counsel; and
``(II) that found that the person, as a result of marked
subnormal intelligence, mental impairment, mental illness,
incompetency, condition, or disease--
``(aa) was a danger to himself or herself or to others;
``(bb) was guilty but mentally ill in a criminal case, in a
jurisdiction that provides for such a verdict;
``(cc) was not guilty in a criminal case by reason of
insanity or mental disease or defect;
``(dd) was incompetent to stand trial in a criminal case;
``(ee) was not guilty by reason of lack of mental
responsibility under section 850a of title 10 (article 50a of
the Uniform Code of Military Justice);
``(ff) required involuntary inpatient treatment by a
psychiatric hospital for any reason, including substance
``(gg) required involuntary outpatient treatment by a
psychiatric hospital based on a finding that the person is a
danger to himself or herself or to others; and
``(ii) does not include--
``(I) an admission to a psychiatric hospital for
``(II) a voluntary admission to a psychiatric hospital.
``(B) In this paragraph, the term `order or finding' does
``(i) an order or finding that has expired or has been set
aside or expunged;
``(ii) an order or finding that is no longer applicable
because a judicial officer, court, board, commission, or
other adjudicative body has found that the person who is the
subject of the order or finding--
``(I) does not present a danger to himself or herself or to
``(II) has been restored to sanity or cured of mental
disease or defect;
``(III) has been restored to competency; or
``(IV) no longer requires involuntary inpatient or
outpatient treatment by a psychiatric hospital; or
``(iii) an order or finding with respect to which the
person who is subject to the order or finding has been
granted relief from disabilities under section 925(c), under
a program described in section 101(c)(2)(A) or 105 of the
NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note),
or under any other State-authorized relief from disabilities
program of the State in which the original commitment or
``(37) The term `psychiatric hospital' includes a mental
health facility, a mental hospital, a sanitarium, a
psychiatric facility, and any other facility that provides
diagnoses or treatment by licensed professionals of mental
retardation or mental illness, including a psychiatric ward
in a general hospital.''; and
(2) in section 922--
(A) in subsection (d)(4)--
(i) by striking ``as a mental defective'' and inserting
``mentally incompetent''; and
(ii) by striking ``any mental institution'' and inserting
``a psychiatric hospital''; and
(B) in subsection (g)(4)--
(i) by striking ``as a mental defective or who has'' and
inserting ``mentally incompetent or has''; and
(ii) by striking ``mental institution'' and inserting
(b) Technical and Conforming Amendment.--The NICS
Improvement Amendments Act of 2007 (18 U.S.C. 922 note) is
(1) by striking ``as a mental defective'' each place that
term appears and inserting ``mentally incompetent'';
(2) by striking ``mental institution'' each place that term
appears and inserting ``psychiatric hospital'';
(3) in section 101(c)--
(A) in paragraph (1), in the matter preceding subparagraph
(A), by striking ``to the mental health of a person'' and
inserting ``to whether a person is mentally incompetent'';
(B) in paragraph (2)--
(i) in subparagraph (A)(i), by striking ``to the mental
health of a person'' and inserting ``to whether a person is
mentally incompetent''; and
(ii) in subparagraph (B), by striking ``to the mental
health of a person'' and inserting ``to whether a person is
mentally incompetent''; and
(4) in section 102(c)(3)--
(A) in the paragraph heading, by striking ``as a mental
defective or committed to a mental institution'' and
inserting ``mentally incompetent or committed to a
psychiatric hospital''; and
(B) by striking ``mental institutions'' and inserting
Someone had asked me earlier if this would fix the problem with observational commitments under Section 302 of Pennsylvania’s Mental Health Procedures Act. The answer is yes, for federal purposes. But 302 observational commitments are still disabling under Pennsylvania law. California has a similar observational commitment called a 5150, and again, this won’t count as a disability under federal law anymore, but California still bars people who have 5150 commitments from possessing firearms for 5 years. This is the same under Florida’s Baker Act as well.
But what about the veterans who have already been put into the system? Under the NICS Improvement Amendment Act of 2007, veterans could petition to have themselves removed from the system. The act requires that the Attorney General provide written notice to every person with a record in the system for mental health disabilities, and informing them of their right to petition to have themselves removed:
SEC. 304. PROTECTING THE SECOND AMENDMENT RIGHTS OF VETERANS.
(a) In General.--Chapter 55 of title 38, United States
Code, is amended by adding at the end the following:
``Sec. 5511. Conditions for treatment of certain persons as
adjudicated mentally incompetent for certain purposes
``(a) Protecting Rights of Veterans With Existing
Records.--Not later than 90 days after the date of enactment
of the Mental Health and Safe Communities Act of 2015, the
Secretary shall provide written notice in accordance with
subsection (b) of the opportunity for administrative review
under subsection (c) to all persons who, on the date of
enactment of the Mental Health and Safe Communities Act of
2015, are considered to have been adjudicated mentally
incompetent or committed to a psychiatric hospital under
subsection (d)(4) or (g)(4) of section 922 of title 18 as a
result of having been found by the Department to be mentally
``(b) Notice.--The Secretary shall provide notice under
this section to a person described in subsection (a) that
notifies the person of--
``(1) the determination made by the Secretary;
``(2) a description of the implications of being considered
to have been adjudicated mentally incompetent or committed to
a psychiatric hospital under subsection (d)(4) or (g)(4) of
section 922 of title 18; and
``(3) the right of the person to request a review under
``(c) Administrative Review.--
``(1) Request.--Not later than 30 days after the date on
which a person described in subsection (a) receives notice in
accordance with subsection (b), such person may request a
review by the board designed or established under paragraph
(2) or by a court of competent jurisdiction to assess whether
the person is a danger to himself or herself or to others. In
such assessment, the board may consider the person's
honorable discharge or decorations.
``(2) Board.--Not later than 180 days after the date of
enactment of the Mental Health and Safe Communities Act of
2015, the Secretary shall designate or establish a board that
shall, upon request of a person under paragraph (1), assess
whether the person is a danger to himself or herself or to
``(d) Judicial Review.--A person may file a petition with a
Federal court of competent jurisdiction for judicial review
of an assessment of the person under subsection (c) by the
board designated or established under subsection (c)(2).''.
Not quite as good as simple removing all the records the VA placed in their entirety, but I suspect there was some concern some of those people might legitimately belong in there, and separating the wheat from the chaff would be too tall an order.
Overall this bill would be an improvement over the current status quo, since it offers a good bit more precision. So far only NAGR has come out against the bill, which is not surprising. So far GOA has been silent on S.2002 as far as I’ve seen, even though they vociferously opposed NIAA in 2007, which was also a major easement of the mental health provisions of the Gun Control Act. Perhaps GOA is waiting to see language, or will just remain silent about the bill. This bill really is an improvement. There are always going to be folks out there who will be satisfied with nothing less than total repeal of the Gun Control Act, and I don’t blame them. But guns for crazy people isn’t a hill I’m looking to die on.
Jul 3, 2015
Here’s a handy guide to the Fireworks laws of the 50 states. Pennsylvania’s fireworks laws are strange because we don’t regulate possession or use, only sale. You can sell fireworks if you have a license to do so, but you can’t sell fireworks, other than the kid’s stuff, to a resident of Pennsylvania. There are a lot of fireworks stores on the Pennsylvania side of the river that specialize in selling fireworks to New Jersey residents, who, of course, ignore their state’s draconian fireworks ban. Buy too much in New Jersey, and it’s possession with intent to sell, and it’s a felony. People have been busted for it. Otherwise possession or use is a petty offense, basically just a fine. New Jersey authorities don’t like you celebrating freedom, comrade.
As Glenn Reynolds noted, fireworks bans “were the entering wedge of nannyism.” Of course, since our federal overlords banned the really fun stuff, I’m not sure how much of this matters anymore.
Jun 26, 2015
It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.
I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?
I infer from the most recent two decisions (King v. Burwell and Obergefell v. Hodges), as well as previous statements and decisions, that Justice Roberts really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience. Meanwhile, the anti-gun justices went 0 for 2 in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.
This isn’t my only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).
At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks and force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.
This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).
Jun 17, 2015
This was the case in Alaska, where a guy came into Rayco Sales gun shop and stole a gun when the dealer had his back turned. Remember that the Brady Campaign are preying on grieving families by backing their filing of these meritless suits:
“The family is crushed,” Mark Choate, co-counsel for the Kims, told the Empire. “… There was so much evidence that showed there was something being hidden about (Coxe’s) behavior.”
I feel sorry for those people, but the odds were very much stacked against success from the beginning. Their grief was exploited by a gun control organization that is struggling to find relevance in a movement increasingly centered around Mike Bloomberg and his fat wallet.
Choate said even though the jury found Coxe did not sell the weapon to Coday, it doesn’t mean Coxe wasn’t negligent. But a federal gun law — called Protection of Lawful Commerce in Arms Act, or PLCAA for short — shields guns dealers and manufacturers from claims of gross negligence, he said.
At first I thought he was wrong about PLCAA covering gross negligence, but it only exempts negligent entrustment and negligence per se. That means they had to prove that Coxe violated a statute or regulation, and couldn’t just argue that overall, he was a sloppy dealer. They jury did not find Brady’s argument credible. Negligence and gross negligence is a more subjective standards, which is probably why they were not exempted. Find the right jury, and they might be willing to side with a plaintiff on those claims even if they are meritless.
This was the Brady Center’s best case, and best hope for a victory, and it’s now gone down in flames. PLCAA is not quite a brick wall for the Brady Center, but it’s certainly harding up very quickly.