Why Not Reduce The Court to 7 Justices?

There’s a lot of concern that if Hillary, Bernie, or Joe Biden put in as pinch hitter for an indicted Hillary win in 2016, our goose is cooked as far as the Supreme Court go. But it’s not written in stone that the Supreme Court must have nine justices. Originally, there were six justices. Congress then added additional justices as we added federal circuit courts until it reached ten. Then in 1866, Congress passed the Judicial Circuits Act which said the next three justices to retire would not be replaced. That didn’t last long before in 1869, the number was returned to nine, which is where it remains today.

If the court were reduced back to 7, Scalia would not be replaced, and the next justice to die or retire likewise would not be replaced. You have two Dem appointees on the Court who are getting up there in the years (Breyer and Ginsburg), one Republican (Kennedy), and Thomas isn’t getting any younger either. It would seem to me that would preserve the balance on the court, and lower the stakes somewhat. But I think both sides like the high stakes, and therefore I don’t think this will ever happen.

Follow Up on Trump Poll

First let me apologize for my broken polling plugin. It works OK if you’re logged in, so I didn’t notice it was broken for those who were not logged in. A lot of WordPress plugins are hot garbage, unfortunately. But I wanted to follow up on some themes from Trump supporters. I am not becoming a Trump supporter myself. Both my preferred candidates are out of the race by this point, and I have no intention of voting for Trump (or perhaps anyone) in the primary because I just don’t trust him, and that’s a low bar as applied to politicians. But I do want to learn the lessons of the Trump phenomena, something that the GOP would be wise to do themselves.

I’ve come to believe the success of Trump in the GOP primary rests on three legs of a gold plated, terrific, really the best stool ever. The first is outrage with the left. A lot of working class voters were fooled by Obama, believing he’d improve their lot after the financial crisis. Eight years later, and it’s very good to be upper middle class, but for everyone else, things have only gotten worse. The people supporting this leg are rough-around-the edges-working class types, and they are not ideologues. These are the folks most receptive to anti-immigration anti-free-trade rhetoric. These are the people who didn’t show for Romney.

The second leg is outrage with the GOP beltway insiders. Even before Trump came along, I’ve long thought that the GOP would do itself a huge favor if it would hire a consultant to go down K street with a flamethrower, rather than hiring consultants to help talentless hacks lose elections. For better or worse, Trump is the first guy to come along in some time that actually has genuine raw political talent. Rubio has talent in abundance too, but Rubio also listened to a lot of talking heads and K-street hacks about how to brand himself for this race, and it was all wrong. A monkey could have told you it was all wrong. The GOP has not had anyone in the White House not named Bush since Reagan, and all the losing candidates have tried to follow the Bush model on how to win. I’ve never been of the opinion the Bush family have remarkable political talents and instincts. In fact, they are about as responsible for Trump as Obama.

The third leg is Trump enthusiastic rejection of political correctness. He says what he wants and gets away with it. There are a lot of people out there who have felt afraid to speak their mind because of the stifling conformity and groupthink demanded by the left. The downside to this is Trump has freed people to speak that I really wish wouldn’t (such as genuine racists and xenophobes). But I think supporters believe Trump is the path to ending the current wave of political correctness. They want to win back some legitimacy for their views.

Let me conclude that I don’t believe all the chicken little predictions that Trump will lose in a landslide to Hillary, and that he’ll throw all the down ticket races to the Democrats, and the seas will rise and skies will blacken. If Trump, or really anyone, can manage to win an election without K-street and the GOP think tanks in their corner (i.e. the real GOPe), they’re done, and they know it. There’s a lot of money made in losing elections for talentless hacks, and less but still good money in flushing real talent down the sewer with focus grouped poll tested bullshit (like they did with Rubio). You can bet they will stop at nothing to prevent anyone from strangling their golden egg laying goose. When he first appeared on the scene, I had hoped Rubio could be the guy who gave the finger to these hacks, and tried to go it on instinct, but unfortunately he disappointed.

Again, I am not a Trump supporter. I am interested in understanding his candidacy as someone who has followed politics closely for a long time.

Does Toomey Think He Can Survive As An Anti-Gun Republican?

I’ve about had my fill of this shit show of an election season, and here comes Pat Toomey trying to get votes from people who will never vote for him while actively working to piss off the people who worked hard to put him in the Senate:

Nancy Grogan is a Board member of CeaseFire, PA. I’d bet money she’s not voting for Pat Toomey in the general, regardless of her willingness to “reward” him for his loyalty.

The Cradle and Grave of Liberty

Without apparently any sense of irony, a busybody in Lexington, MA is pushing the town to enact a sweeping gun ban. I guess in the end, General Gage wins. The yankees have gone and disarmed themselves! At the very place where eight patriots gave their lives trying to prevent exactly what this naive man wants to do. Fortunately, there is at least some sense left in Lexington:

Many of the approximately 30 who spoke in opposition to the proposed ban mentioned Lexington’s history at the dawn of the American Revolution, saying the community that has a Minuteman holding a rifle on its town green should not be the place leading the charge to toughen weapons laws.

There’s no legacy or patriot grave these people wouldn’t piss all over to accomplish their gun free utopia. They have no concern for the history and traditions of this country at all.

A Trump Poll

I don’t really have Trump supporters in my circle, and I’ve been looking to understand the motivations of Trump supporters better. I’ve devised an informal poll. It’s anonymous, so you don’t have to worry, but if you’re OK speaking up in the comments, feel free. I will ask that everyone be respectful of each other, however.

What's the primary reason you're supporting Trump? Pick the reason closest to what really motivates you, even if others are also true.

View Results

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UPDATE: Apparently my polling plugin is broken. Not sure why. Feel free to answer in the comments.

Second Amendment Right to a Stun Gun

The Supreme Court delivered a unanimous opinion that the Massachusetts Supreme Judicial Court got it wrong when it ruled that there was no constitutional right to a stun gun. You read that right: unanimous. Yeah, I’m shocked too. Gives me some hope that maybe with Scalia’s death we’re not doomed after all. This is the first Second Amendment decision from the SCOTUS since McDonald. The per curiam opinion is so short I can reprint it here:


The Court has held that “the Second Amendment ex- tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amend- ment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su- preme Judicial Court of Massachusetts upheld a Massa- chusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi- tion “that only those weapons useful in warfare are pro- tected.” 554 U. S., at 624–625.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It follows with an opinion by Thomas and Alito excoriating the Massachusetts Supreme Judicial Court for flagrantly ignoring Heller. Also, this is fun:

Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.

That pretty much puts to bed several arguments of our opponents, and a few from people on our side who still read Miller that way.

Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­ sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from “sup­ press[ing] Insurrections,” a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth “to execute the Laws of the Union”). Addition­ ally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

Are we seeing the beginnings of my preferred “police use” test? Namely, if the cops routinely use a type of weapon it’s unquestionably a protected arm. Obviously this was an opinion by two justices, but let us hope this unanimous ruling sends a message to the lower courts. I don’t think this should be read as any kind of revelation on the part of the liberal justices. I still think they’d vote to uphold carry restrictions and assault weapons bans. But this is certainly a ray of sunshine considering the darkness I see on the horizon.

Wisconsin Proposing Range Rule Changes

From the Star Tribune:

DNR officials plan to present a wide-ranging package of regulations to their board next month that would prohibit the possession and consumption of alcohol on the ranges as well as prohibit shooters from using fully automatic weapons and tracer ammunition. Incendiary, exploding and breakable targets would be banned, although clay trap targets would be allowed. Shooters would have to unload their weapons when they’re off the firing line.

I don’t have an issue with prohibiting alcohol at the ranges. I’m surprised that isn’t already a rule. But do they really have issue with people shooting up public ranges with machine guns? I can see a rule prohibiting shooting glass and other items that could junk up a public range and create a hazard. Incendiary targets pose a fire hazard, so I can see that too. Exploding targets, well, that just sounds like fun to me, but I could see where you’d get people who abuse it. What do you think? Most of these rule changes, save the machine gun ban and maybe the rule about explosive targets, don’t sound too objectionable. What do you think?

What Does the Merger of Law Center with Gifford’s Organization Mean?

Since my time has been short this week, by now most of you have probably heard from other sources that Gabby Giffords group, Americans for Responsible Solutions has merged with the Law Center to Prevent Gun Violence. I’ve read several takes on this, and usually when something like this happens, it means one of them was too short on money to continue functioning. I’ve said it before, and I’ll say it again, without Bloomberg’s money coming into the fight, most of these gun control groups would have either folded up shop years ago, or would have descended into a jobs program for a small handful of passionate, yet irrelevant people. Bloomberg’s money is the only thing keeping this issue alive.

Giffords was pretty successful at fundraising for her PAC from high-profile billionaires, including Bloomberg, but fundraising for their 501(c)(4) started out strong, but then took a dive. Could be Giffords and Kelly were just tired and wanted out. But it’s hard to believe that finances didn’t play a role, even if the group’s trouble was long term. I haven’t seen recent 990s from Brady yet. I can’t imagine they are in very good shape at this point.

Obama’s Scalia Replacement

President Obama will announce his nominee to replace Justice Scalia shortly. The press reports that it is Merrick Garland.

Not surprisingly, he’s got a record that does not point to a positive future for the Second Amendment if he is confirmed.

This article from Dave Kopel in 2008 warned of Garland on a short list to be appointed, and he cited red flags from Garland’s role in Parker v. District of Columbia and NRA v. Reno. Kopel summed it up this way:

Merrick Garland is a judge on the U.S. Court of Appeals for the D.C. Circuit. He could be counted on not only to oppose Second Amendment rights in general, but even to nullify explicit congressional statutes that protect those rights.

More recently, even National Review noted that Garland’s positions on the Second Amendment were enough cause for worry since the White House indicated they might choose someone “moderate,” and these aren’t signs of moderate positions on the right to keep and bear arms.

Media Matters had a post up early this morning trying to claim that these previous moves are “myths,” and that he’s not really anti-Second Amendment. I guess that means the White House knows it will be a problem. Now would be a great time to call your Senator and let them know what you think about this nominee.

Enhanced Preemption Probably Lost Due to Single Subject Requirement

Pennsylvania’s enhanced preemption measure, Act 192, got off to a rough start when it had to be attached to a metal theft bill at the last minute, and then quickly signed by the outgoing Governor Corbett. This happened because of Senator Greenleaf’s obstinance in committee. The only way to get it onto the Senate floor was to amend it to another bill.

The problem is that Pennsylvania has a single subject requirement for bills, and it’s a stretch to argue that metal theft and firearm preemption are the same subject. It was more than two years ago the lawsuits started. Now the case has been argued before the Pennsylvania Supreme Court, and it’s being noted that it doesn’t look good for Act 192. Act 192 has been unenforceable since a stay was issued in a lawsuit until the constitutionality of the act could be determined. Still, even if the Supreme Court refuses to  Act 192, the law still did some good during the time period when it hadn’t yet been challenged.

If we can get rid of Wolf in a few years, we might have another shot at this. I’m also at the point where I would even be willing to help out a leftist Dem challenger to Greenleaf just to get him off that committee chairmanship.

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