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The courts have taken us this far, and no farther

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).

Best Gift Ever to the GOP

The Supreme Court has made gay marriage legal everywhere in the United States, thus giving the Republican Party a huge gift. The truth is that opinion on this issue has been breaking in favor of gay marriage for the past decade, and it’s only accelerating. The political fight over this issue risked losing an entire generation to the Democratic Party, since a lot of millennials are single issue voters when it comes to this issue. The Supreme Court certainly has not put this issue to rest, because we’re still going to argue over cakes, but for the most part it’s now off the table politically. I feel this will soon become a settled issue.

Pennsylvania was not a state that had legislatively enacted gay marriage, and it was not going to as long as the GOP controls the legislature. The GOP now controls the legislature at historic levels. I don’t think Kathleen Kane is endearing herself to many people these days. Things look good for the GOP in Pennsylvania for the time being, despite the loss of the governorship. I thought the gay marriage issue was likely the biggest threat to the GOP majority in the long term, and now that’s off the table. While I’m sure Rep. Daryl Metcalfe won’t be thanking Justice Kennedy any time soon, he probably should. The GOP was in a Catch 22. It couldn’t mellow much on gay marriage without risking the loss of evangelicals, but it also couldn’t keep being obstinate on the issue and expect young people not to close their minds to whatever else the GOP might have to say.

I have long been in favor of legalizing gay marriage (I supported it before Obama and Hillary), but preferred that it be accomplished legislatively rather than through the courts. But I’d much rather be pissed at the GOP because they are stupid, venal, and ineffective rather than because they are taking the ship down over this long-term losing issue.

An Old Idea Catches on with the Left

It used to be gun rights advocates were the ones calling for the abolition of the Bureau of Alcohol, Tobacco, and Firearms. Now progressives are catching on to what a dandy idea it really would be to roll the ATF into the FBI. Why? Because this would be a disaster for gun rights, and they are starting to figure that out.

The FBI has a long, sorry history of unspeakable abuses against the civil liberties of Americans, and along with that is a history of getting away with it. Not only do they get away with it, but they get away with it while making the public and politicians adore them. The FBI is much more competent at manipulating lawmakers, policymakers, judges, and juries to get what they want, and if they take on ATF’s functions, what they will want are more gun control laws.

I think it was a mistake to put even part of ATF under DoJ dominion, and you can thank Republicans for that one. ATF’s role should be that of a regulatory and tax collecting agency. It should have the culture of a regulator rather than an enforcer. Sure, in the days when even the Department of Education has SWAT teams, there will always be “the enforcers” in any regulatory agency, but the FBI have no regulatory role, they are only enforcers and domestic spies. The FBI is very good at railroading people if they decide to target you. Remember, this is an agency started by one of the most dangerous men in the history of this country.

Obama Administration Restricts Military Equipment to Police

Bob Owens is reporting the Obama Administration has announced restrictions on the federal program to deliver surplus military equipment to police departments. I have mixed feelings about this. On the one hand, I do tend to think making the department go to their civilian overseers for approval is not unreasonable. On the other hand, I think it’s not a bad thing, generally speaking, for this equipment to end up widely distributed to local communities, rather than just setting in federal government warehouses. Even if you’re a real wookie suiter “insurrectionist,” it’d be a hell of a lot easier to liberate equipment from your local PD than it would be from the feds if the S were to ever HTF.

Not just gun control

Remember, it’s not just guns they want to control. I find several parts of this whole fiasco disturbing. Right from the beginning of the article, DHS and FAA held a “conference was open to civilians, but explicitly closed to the press. One attendee described it as an eye-opener.” When one of those attendees (who runs a small drone shop) posted a picture and notes from the conference, DHS asked him to take it down (he complied).

Then we get to the meat of the issue – that a drone manufacturer unilaterally chose to add all of DC to their drones’ internal “no-fly” map. First, of course, that their drones have a “no-fly” map in the first place, and secondly, that “DJI is preparing an update that will increase the number of airport no fly zones from 710 to 10,000, and prevent users from flying across some national borders.” This is of course, pointless, as there are other manufacturers as the spokesam for DJI points out. Wired also points out that this won’t prevent terrorism, because there will always be workarounds, legal or otherwise.

Sebastian noted a while back about the wishes of gun-control advocates to be able to erect “no-smartgun” zones at will. It looks like their counterparts in drone control will get that wish. I can only hope that DJI gets what Smith and Wesson got from firearms enthusiasts when they kow-towed to the government.

Why Do Teachers Need Special Self-Defense Standards?

Our community is often upset, rightly so in my opinion, when police are given special powers that ordinary citizens lack. For the most part, the justification standards for use of force and deadly force is the same for an ordinary citizen as it is for the police officer. Police officers, of course, sometimes have different powers to apprehend, and also have qualified immunity (which is why a citizens arrest is never a smart idea). I think it’s an important tenet of our Republic that all citizens are equal before the law, regardless of whether they are agents of the state or not. I know we don’t often live up to that, but I think that is an ideal to strive for.

So that leads me to question why other people, people who are often agents of the state, need special powers to protect themselves? I could see a bill that prevented a teacher who exercises their right to lawful self-defense from being fired. That’s really just employment law. But it appears the bill says:

… an educator is justified in using force or deadly force on school property, on a school bus or at a school-sponsored event in defense of the educator’s person or in defense of students of the school that employs the educator if, under the circumstances as the educator reasonably believes them to be, the educator would be justified…in using force or deadly force, as applicable, in defense of the educator or students.

I’m not really certain what this even accomplishes, but I admit to being ignorant of any detailed knowledge of Texas self-defense law. The rest of the article leads me to believe that the sponsor of this legislation, Rep. Dan Flynn, is Texas’ very own version of our Daryl Metcalfe. Thinking of it that way puts this in an understandable context.

Speaker Vote Kabuki Theater

As much as I’d like to see someone other than John Boehner elected as speaker, I don’t think that’s going to happen. I think this is engineered so the Tea Party guys can look like they’re getting tough on the leadership, without actually changing anything. If this ends any other way I’ll be surprised. Jim Geraghty notes in today’s Morning Jolt:

 

 

 

The problem in budget negotiations for Republicans is that a) the public isn’t as outraged about wasteful and excessive spending as Republicans and conservatives are; b) the president is a shameless demagogue who commands the bully pulpit; c) most of the media will happily assist the president by blaming Republicans for every school bus full of kids that doesn’t get to visit the Smithsonian during a government shutdown […]

Those factors bedeviled Republicans before John Boehner was Speaker, they have bedeviled them throughout his Speakership, and they are likely to bedevil them for the near future.

And it will bedevil them even if Boehner isn’t speaker. We visited with one of Bitter’s friends who works on the Hill over the holiday, and were discussing the real concern about the base’s expectations for what the GOP can accomplish for the next two years, and whether by 2016 the base is going to be dejected and demoralized for lack of accomplishments, and therefore decide to stay home. Of course, the other choice is to fight, fight, fight, get creamed the press and steamrollered by Obama, and lose the election because LIVs think we’re mean spirited, and Independents get turned off by the whole spectacle. It’s kind of a damned if you do, damned if you don’t situation.

Ideologically, I have some sympathies for the Tea Party position (to whatever degree you can divine exactly what it stands for), but they’ve shown little understanding for how the system works. Maybe it shouldn’t work this way, but it does, and changing it isn’t going to be easy. Sure, I agree Boehner isn’t a guy who’s going to change anything, except maybe the shade of his fake tan, but I’d also be wary of a hard core Tea Party type who’s going to pick all the wrong fights.

UPDATE: Looks like he won the vote count, with 24 voting against. 29 would have been needed to send this to a second ballot.

Radley Balko on Police Militarization

This is a 42 minute long interview, but worth your time:

Mark Steyn on Ferguson: Where Were the Dash Cams?

I haven’t had much to say about the Ferguson situation, because I’m just not sure there are any good guys here. Everyone seems to be acting badly. I’m also glad Mark Steyn channels my major issue about the case, which is why there wasn’t any dash cam:

The most basic problem is that we will never know for certain what happened. Why? Because the Ferguson cruiser did not have a camera recording the incident. That’s simply not credible. “Law” “enforcement” in Ferguson apparently has at its disposal tear gas, riot gear, armored vehicles and machine guns …but not a dashcam. That’s ridiculous. I remember a few years ago when my one-man police department in New Hampshire purchased a camera for its cruiser. It’s about as cheap and basic a police expense as there is…

… In 2014, when a police cruiser doesn’t have a camera, it’s a conscious choice. And it should be regarded as such. And, if we have to have federal subsidy programs for municipal police departments, we should scrap the one that gives them the second-hand military hardware from Tikrit and Kandahar and replace it with one that ensures every patrol car has a camera.

I couldn’t agree more. The state still has to prove its case (should there be one) beyond a reasonable doubt, but that’s going to end up being “he said, she said” rather than hard evidence, thanks to the lack of dash cam footage. In addition to the initial disproportionate response when all this got started, I also think it says something profound about the Ferguson, MO police department that in this day in age it’s elected to forego dash cams.

You don’t seem to hear the media speaking much about the lack of dash cams, probably because they are too busy showing the world what uneducated nitwits they are.

Quote of the Day on Executive Overreach

National Review’s Yuval Levin hits on what I really don’t like about the Obama Administration:

In one sense, the approach the president is said to be contemplating does fit into a pattern of his use of executive power. That pattern involves taking provocative executive actions on sensitive, divisive issues to isolate people he detests, knowing it will invite a sharp response, and then using the response to scare his own base voters into thinking they are under assault when in fact they are on the offensive. That’s how moving to compel nuns to buy contraception and abortive drugs for their employees became “they’re trying to take away your birth control.” This strategy needlessly divides the country and brings out the worst instincts of people on all sides, but it has obvious benefits for the administration and its allies. Liberals get both the substantive action and the political benefit of calling their opponents radicals and getting their supporters worked up. Obama’s legalization of millions would surely draw a response that could then be depicted as evidence of Republican hostility to immigrants, rather than of Republican hostility to illegal executive overreach that tries to make highly significant policy changes outside the bounds of our constitutional order.

It’s not that he’s liberal. I’ve been through liberal presidents in my lifetime. Despite Clinton being far more damaging on guns than Barack Obama could ever dream of, I never developed the visceral dislike of Clinton Administration that I have for the Obama Administration. Maybe that’s partly psychological. The Clinton years were good. I look back fondly on that time in life. In contrast, the Obama years have been hellish both financially and in always feeling like we’re living on the razors edge just a hair’s breath away from losing everything we thought we believed about this country.

Philosophically, I think Barack Obama is a fairly conventional progressive in the mold of Woodrow Wilson; another ends-justify-the-means president who isn’t above flaming the worst instincts in the populace if it benefits the promotion of his political agenda. But I also can’t help but to take a swipe at Republicans here.

You know what makes Republican cries of overreach ring hollow? Maybe because your guy did it over the howls of the left during the last Administration? I would be the first to agree that Bush’s crimes with executive overreach pale in comparison to Obama’s, but Bush set the stage. You reap what you sow. I’m deeply angry at the Obama surveillance state, but it was Bush who laid the foundation for it. Let’s not kid ourselves.

Many people on the right call on President Obama to be impeached for a his overreach. Like the author of this piece, I am more sympathetic to handing out green cards more liberally than the majority of conservatives. But if he unilaterally, and without legal authority, implements amnesty without action by Congress, I believe he ought to be impeached. That would be a bridge too far for me when it comes to illegal executive actions. I know the consequence of that is President Joe Biden. I’d take it.

However, you know what makes impeachment politically impossible for the Republicans? You know what makes Obama invite the very idea? Progressives well remember what happened the last time Republicans decided it was a good idea to impeach the last Democratic president over the very important topic to the future of the country: lying about whether he did or did not get a blow job from another consenting adult.

Impeachment is serious business. It should only be for very serious things. But when the GOP made President Clinton only the second President in the US to be impeached by the House, over being dishonest about blow jobs, they cheapened the very idea. Along comes a president who has actually done some things I think may deserve impeachment, and sorry guys, you surrendered the moral high ground.

So Obama won’t be impeached. And you can thank Newt Gringrich for that.

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