Month: October 2011
We’re Winning
Count this among things I’d never thought I’d see even just 5 years ago: editorial in the Denver Post sticking up for gun rights for medical marijuana users. This issue would take care of itself if Congress passed a medical marijuana law, because then those users would no longer be “unlawful.”
iPhone 4S
I got the play-by-play on the first non-Steve product release. First part of the presentation was how they had caught up to Android. Jobs never would have done that. Trying to edge other products and play “me-too, only better” was what Apple did during the Gil Amelio days, and it didn’t work out too well for them.
The improvements in the camera are welcome, and I think they are going in the right direction with the speech technology. I don’t really give a crap about being able to speak searches, or have a device take dictation, but being able to set and review appointments via voice, or to get updates on weather and traffic via voice would be a great help.
Apple is very proud of Lion. Initially I didn’t think Lion was too bad, but it’s a horrible release. It’s buggy as hell, and Safari is now full of quirks and bugs, whereas it was one of the cleanest browsers out there.
I will probably get an iPhone 4S, but only because I currently still have a 3G (not even the 3GS) with a screen that has streaks of failed pixels all through it. But I worry Apple is headed back down the road to being “me too, only better” while chasing everyone else instead of really innovating.
Perhaps history will repeat itself a bit here. After Apple release the Macintosh (which was truly innovative in the same way iOS was, in that Apple stole/bought the technology from Xerox/Fingerworks), quickly had the technology stolen by competitors (Microsoft/Google), Steve was booted/left for health reasons, leaving Apple to slowly wither as their competitors killed their market share as Apple lost ground in the gadget race.
Only this time it could be worse. Windows 3.0 was a piss poor knockoff of MacOS. Up until Windows NT 4.0, Microsoft arguably had a product that was inferior on nearly every way, and despite the flaws of MacOS at the time, I still largely preferred it to NT 4.0’s user interface. Android is a stellar implementation of the ideas originally pioneered by Fingerworks, and later bought by Apple. Google is also a lot smarter than Microsoft. Apple is going to have to impress people better than they did yesterday if they want to hold on to their market share, which means the iPhone 5 is going to have to introduce something very new.
UPDATE: Speaking of the early Windows NT reminds me, nothing is really all that new, even in technology. It’s kind of like guns in that regard. Microsoft produced NT by snatching away all the top operating system developers from Digital Equipment Corporation. Because of that, it’s long been believed that Windows NT (now just called Windows) still retains an awful lot of VMS-like constructs, and that its internals are very similar to VMS. MacOS is really just a candied up version of NeXTStep, that was developed by all the same people who were brought in when Apple bought NeXT. And even NeXT was just a mach microkernel with parts of BSD Unix grafted on.
Taking the “Apex” out of “Predator”
Clayton Cramer shows just how nutty the State of California is becoming, warning about Mountain Lion predation, but the prohibiting all weapons, and suggesting such things as this:
Do all you can to appear larger. Raise your arms. Open your jacket if you are wearing one. Throw stones, branches, or whatever you can reach without crouching or turning your back. Wave your arms slowly and speak firmly in a loud voice. The idea is to convince the mountain lion that you are not prey and that you may be a danger to it.
Fight back if attacked. Hikers have fought back successfully with sticks, caps, jackets, garden tools, and their bare hands. Since a mountain lion usually tries to bite the head or neck, try to remain standing and face the attacking animal.
For those of you unfamiliar with feline taxonomy, Mountain Lions, also known as Cougars, are the largest of the Felinae subfamily, which includes Cheetah’s, Lynxes and domestic cats. Clayton notes:
And best of all: firearms are strictly prohibited in the nature preserve. So, remember, if all else fails, fight the mountain lion in hand-to-hand combat. Look, I have had house cats that made me regret trying to pick them up, and I’m supposed to fight a 150 pound mountain lion unarmed?
I think, unfortunately, there are more than a few kooks in the State of California that would think being preyed upon by a Mountain Lions was just desserts (no pun intended) for a species that rapes the earth as much as we do. As a cat person, I would certainly attempt to avoid killing a cat if I could, but I’d prefer to have the option of a few rounds of .44 Magnum. I think it would prove to be much more effective at convincing Mountain Lions that humans are not to be tangled with than harsh language.
Nifty AR-15 Cleaning Tool
I am intrigued by this tool originally brought to the community by The Firearm Blog:
I am an anal retentive gun cleaner, when I set out to clean. I get over this obsession by trying not to think about it. But when I tear down a gun for cleaning, I want everything immaculate. This tool would seem to be tailor made for the anal retentive.
I say that because I’ve never been convinced that buildup on that particular part mattered in terms of function and reliability of the system. Certainly the rings need to be clean, but do you care about the part that shown being clean in the video?
Quote of the Day
We need more judges like this:
This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy … A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the “one supreme Court†established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.
D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime… In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have “controversial public safety implications.â€
As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced. We should reverse the judgment of the District Court and remand for proceedings consistent with this opinion. I respectfully dissent.
Judge Brett Kavanaugh, D.C. Circuit Court of Appeals. Heller v. DC, dissenting.
Most Significant Loss to Date
I believe that Heller II or Heller v. DC is our most significant loss in court to date. It’s being picked up quite heavily by the media, and our opponents are justifiably celebrating. Understand that this is not a District Court loss. Those have become par for the course in Second Amendment cases. This is a loss of an entire federal circuit, and arguably the most important federal circuit. Gene Hoffman had a comment that I think is worth highlighting:
I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…
I think he’s absolutely correct here, and unfortunately this is not the only NRA-backed case that’s flawed in this manner. Benson, challenging the entire kitchen sink of Chicago regulation is similarly flawed. I would also argue that Dick Heller, while a good plaintiff for the original case challenging handgun possession, was a poor choice for going after restrictions on semi-automatic rifles. I believe NRA needs to start being a lot more careful about the battles it’s choosing to fight in Court.
While I believe the case in regards to purchase by 18-21 year olds has merit, I question of the wisdom of going after carry by 18-21 year olds at the same time. Do we really want the courts to understand the full extent of the can of worms they could be opening? We need strong rulings, starting out. What we don’t need are courts getting scared by extraneous issues we can get more easily when the case law looks more solid. Using this example, if you get courts to say 18-21 year olds have Second Amendment rights that can’t be impermissibly infringed, and you can get courts to say that there’s a right to carry, carry for 18-21 year olds flows naturally for that. It’s just not necessary, in my opinion, to bring that suit.
By the same token, I believe pursuing an assault weapons case at this point was highly premature, and said so last year when this failed in District Court. Heller II would have done far better to focus narrowly on the most onerous of DC’s requirements when it comes to the exercise of the core right. I really hope NRA re-examines its legal strategy. At the risk of hurting some feelings at NRA HQ, SAF has a far more coherent and concise legal strategy.
But that said, the greatest thing NRA will do for us, which is absolutely essential, and something SAF cannot do, is to create a political climate where ruling against the Second Amendment is career suicide for judges looking to advance on the bench. We have to get the Second Amendment community obsessed about what federal judges think about the Second Amendment. That is, unfortunately, a tall order. But it is necessary.
It is my honest opinion that if we do not take back the White House in 2012, we’re going to end up with a very weak and nearly meaningless Second Amendment right, that will never mean anything beyond being able to have a handgun in the home, with any manner of obstacles and frustrations being thrown in the way of that being perfectly acceptable by the federal courts. If we can be victorious in 2012, this ruling, as much of a setback as it is, will likely only be a speed bump on the way to turning the Heller II dissent into prevailing legal opinion.
A Little Touchy Are We?
Instapundit is reporting that CBS reporter Sharyl Attkisson was screamed at by the White House over her reporting on Fast and Furious:
 They will tell you that I’m the only reporter–as they told me–that is not reasonable. They say the Washington Post is reasonable, the LA Times is reasonable, the New York Times is reasonable, I’m the only one who thinks this is a story, and they think I’m unfair and biased by pursuing it.
I guess they want her in the tank along with all the other papers mentioned. It’s worth noting that at one time, reporters felt it was their responsibility to hold the government and its officials accountable. I guess that time has passed.
Ms. Attkisson better watch it, or she’ll get the Chicago treatment. I hope she’s been meticulous and scrupulous about her tax returns.
UPDATE: House GOP is calling for a special prosecutor to investigate Eric Holder. This is coming from Judiciary. Maybe this is why the White House and DOJ are so testy.
Heller II: The Dissent
Say what you will about how much George W. Bush sucked for gun rights, and a lot of people make the case, but his judges seem to be the ones who take the Second Amendment seriously. It’s worth noting that Judge Sykes, who wrote the opinion in Ezell, was a Bush nominee. The other two judges were put on the Court by Bush the Elder, and Ronald Reagan. Reagan’s appointments to the Court seem to be more mixed. But Judge Kavanaugh, put on the bench by George W. Bush, was the dissenting judge in this case. From the opinion:
In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.
In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi- automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi- automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)1
You can see the importance of the 2012 elections in whether we’re going to have a strong Second Amendment. The more people Obama puts on the federal courts, the more rulings like this we’re going to get, and eventually, without defense from the Supreme Court, the Second Amendment will slowly be interpreted to be an individual right that is virtually devoid of meaning.
Judge Kavanaugh’s dissent is very interesting, because he rejects an approach to the Second Amendment based on levels of scrutiny, and instead adopts one based on text and traditions, as described here:
So the major difference between applying the Heller history- and tradition-based approach and applying one of the forms of scrutiny is not necessarily the number of gun regulations that will pass muster. Instead, it is that the Heller test will be more determinate and “much less subjective†because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico- political First Principles whose combined conclusion can be found to point in any direction the judges favor.†McDonald, 130 S. Ct. at 3058 (Scalia, J., concurring).
Which has been precisely the behavior we’ve seen from federal judges, especially on lower courts.
The majority opinion here applies intermediate scrutiny and contends that intermediate scrutiny is consistent with Heller and McDonald. The majority opinion employs history and tradition only as a threshold screen to determine whether the law in question implicates the individual right; if so, the majority opinion then subjects the individual right to balancing under the intermediate scrutiny test. As explained above, I disagree with that approach. I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition. Deeper examination of the two Supreme Court opinions – and, in particular, how the Court’s opinions responded to the dissents in the two cases – buttresses my conclusion.
I think this is a very interesting dissent, and I haven’t seen this approach taken before, but after reading the whole thing, I think it’s entirely consistent with what the Court was trying to say in Heller and McDonald.
The Supreme Court struck down D.C.’s handgun ban because handguns have not traditionally been banned and are in common use by law- abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test. And the Court endorsed certain gun laws because they were rooted in history and tradition, not because they passed the intermediate scrutiny test.
One final aside about the appropriate test to apply: Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here. Heller ruled that the right to possess guns is a core enumerated constitutional right and rejected Justice Breyer’s suggested Turner Broadcasting intermediate scrutiny approach. And McDonald later held that “the right to keep and bear arms†is “among those fundamental rights necessary to our system of ordered liberty.â€
If we want to see dissenting opinions like this become majority opinions, we have to get Obama out in 2012. I don’t care that smart ass half-wits like Jon Stewart make fun of us for trying to paint Obama as anti-gun. The people he’s putting on the Court will try to read the Second Amendment out of the Constitution, and that’s all that honestly matters.
It is especially inappropriate for the majority opinion here to apply intermediate scrutiny rather than strict scrutiny to D.C.’s ban on semi-automatic rifles. No court of appeals decision since Heller has applied intermediate scrutiny to a ban on a class of arms that have not traditionally been banned and are in common use. A ban on a class of arms is not an “incidental†regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.
Indeed.
Heller II Loses in DC Circuit, Mostly
The challenge was on DC’s gun laws as they stand post-Heller. They have been upheld in part and remanded in part:
We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.
I hope in this case that Heller II stops here, because this is not a good case to move forward, and it’s already done enough damage. Challenging the “assault weapons” provisions of DC’s law was highly premature, especially considering we’re likely to remedy that through Congressional action if we can flip the Senate and the White House.
The record supports the view that basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional.
I’m not optimistic that registration requirements will be held unconstitutional. It’s hard to imagine a federal judiciary that doesn’t really like the Second Amendment to rule otherwise. If you look at the core right, as the courts have defined it, it’s difficult to argue how registration infringes on it in a substantial way. Nonetheless the Appeals Court seems to be skeptical about requiring it for long guns.
But the Appeals Court seems to be hanging onto the “longstanding” aspect of the original Heller ruling, and seem to be applying a test that if a law is longstanding, it must therefore be constitutional. This strikes me as extraordinarily weak reasoning, although it was exceedingly weak language from the Court, in my opinion. The Appeals Court’s opinion here seems to be based on the fact that the Sullivan Act is longstanding, and therefore a registration scheme, as applied to pistols, is constitutional.
As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.
Couldn’t have seen that coming. Has any court decided that using strict scrutiny is appropriate for anything related to the Second Amendment? Not that I’ve seen. They always find a reason it’s not appropriate. But on to the assault weapons issue, since that is the most curious. There is one bright spot. The Appeals Court found they are in common use:
We think it clear enough in the record that semi- automatic rifles and magazines holding more than ten rounds are indeed in “common use,†as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.
But then proceeded to argue that they were not protected, and restricting them is perfectly constitutional:
Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non- automatic long gun.
They adopted the substitution principle, which was rejected when D.C. made that argument in the original Heller. Basically, because you have access to some firearms in common use, banning other firearms in common use is perfectly OK because of substitution.
Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self- defense or sport.
Magazines don’t fare any better:
The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.â€
So they don’t let their police carry them, do they? NRA now has a mission. It needs to overturn the D.C. gun laws through Congressional action, and I think it would be of great benefit if a quip could be added to the bill citing Congress finds this ruling in error. It’s worth noting that none one of the judges on this panel were was the same as those who decided lone dissenter in the Parker (which then become Heller) case.
I strongly believe the Second Amendment needs to become a litmus test for federal judges. We want the most ambitious of the federal bench fearful to rule against us for the possibility that will be used to prevent advancement to a higher court.
I should note the Court devoted a significant part of their opinion in this case to addressing the dissenting judge in this case. That must mean the dissent is pretty good. We’ll take a look at that later.