It’s not just SCOTUS, he’s been able to rejigger the entire system.
Thursday News Links 09-11-2014
It’s the anniversary of 9/11, and I don’t really have much to say after 13 years. Maybe after 40 we’ll have sales at Penny’s. If it hasn’t been apparent, I’m suffering a bit from blogger burnout. Most of that is because I really just don’t have the time right now. In truth, these past few weeks have been quite generally unproductive, so I don’t think it’s just blogger burnout, but burnout in general. The cure for burnout, for me at least, is usually a vacation, but even if I had somewhere to go, I have things I need to spend money on that aren’t a vacation, like digging a fallout shelter in the back yard. I kid for now, but if the Bear keeps terrorizing the countryside, I might not be kidding. I never had high hopes for this Administration, but if you had told me the Cold War might be back on like in the good old days, I wouldn’t have believed you.
Andrew Cuomo won his primary, but not nearly by the margin he should have as a well-funded incumbent against poorly funded challengers. Jacob notes in the link that it’s being acknowledged that Cuomo’s support for the SAFE Act is a big reason why he fell short of expectations.
Please note some of the unintended consequence of the “law and order” stance of “throw the book at criminals who violate our guns laws.” I’d personally love to see the “law and order” strain in the center-right coalition die the quiet death is richly deserves. I get why we’ve wagged that dog int he past, but it’s always been an unsavory business, and it does us no good to pretend otherwise.
More accurate headline: The NRA Pissed Off the Wrong Billionaire, or maybe the right one. In fact, the effort in Washington State to end private transfers of firearms is headlined almost exclusively by billionaires. Remember, it’s OK to buy democracy, as long as it’s the right people doing it.
Remember, it is unlawful to carry weapons on public transportation in Illinois.
Mother Jones thinks “These Women Are the NRA’s Worst Nightmare.” I hate to tell you Mother Jones, but no. We’ve been through much worse than the likes of Shannon Watts. I’d much rather have Bloomberg and Watts as opponents than the Brady’s, who were a D.C. power couple even before they got into gun control. I’d much rather have an unpopular and failed Obama Administration in the bully pulpit than a popular are politically adroit Clinton Administration. There is no comparison.
Why gun control groups have moved away from the assault weapons bans? It’s naive to believe it’s not still on the agenda. They are just looking for ways to score a victory without rousing our community to oppose them, and they’ve learned assault weapons bans tend to do that. They will ban any gun they can get away with politically if you give them half a chance.
SayUncle notes that using wasp spray as a defensive spray, as an article suggests, is a violation of federal law. I also doubt very much it would be effective. Actual defensive sprays have their place, but I wouldn’t use one to stop a home invasion. Home invasions are deadly force situations.
SayUncle notes that the guy in WalMart who was shot dead holding a BB gun was likely swatted. Bob Owens is also on the case.
Eugene Volokh: The Last American Jurisdiction with a Total Handgun Ban. There’s an awful lot of pacific territories that are unfriendly toward guns. It’s good to see that might be changing. John Richardson has more background not he case. Bitter’s grandfather was stationed on Tinian in World War II as a mechanic, but was shipped back to Hawaii only a few months before this most famous aircraft went rolling down the runway there with it’s rather infamous payload.
The Second Amendment isn’t just about firearms. Someone ought to tell that to Mike Honda.
Thirdpower has snapshots of the rally and counter-rally at Chuck’s Gun Shop in Cooke County. They headed to Pennsylvania right after, but didn’t say where until the lawsuits were filed. I’ll have more to say on that later.
Panera Bread has caved to Shannon Watts. I suspect they wanted to avoid the kind of Bloomberg funded ad campaign currently being waged against Kroger. Where would their movement be without rich assholes? It’s the same play, however. Panera doesn’t actually change it’s policy, but instead releases a statement saying guns are icky so Shannon Watts can fundraise off another “victory.”
Bloomberg getting bored with gun control? I’m not relaxing. It doesn’t take much effort to write checks, and Bloomberg can outspend NRA every year for the rest of his life just by occasionally cleaning out his sofa cushions.
NRO: Anatomy of a GOP Disaster, talking about the Corbett Campaign. The biggest complaint against Corbett from the center-right is that he’s been a do-nothing governor. To me, that’s hardly a sin. I worry more about what politicians are going to do to me than for me. But being a loser Republican this year has to take a special talent, when you look at how other states are faring poll wise.
Anti-gun people won’t give up on this ridiculous notion that guns cause suicides. I can state this very confidently: owning a firearm does not increase my risk of death by suicide one bit. If I die from my own hand it’s going to be by fried foods and booze.
Another mass knifing in China. He stabbed 8 children and a teacher, three fatally.
A lot of anti-gun folks really are terrible people, but let’s not pretend we don’t have assholes on our side too. Though, to be honest, I’ve never seen anything like this on our side.
A teacher in Utah has an accidental discharge while, well, having an… err… intentional discharge. A professor in Idaho also screws up. This obviously is not going to help our cause. While I still strongly believe most people who carry are safe, there is a small number of buffoons out there who will ruin it for the rest of us. We’re probably very fortunate the Missouri Legislature chose to override Governor Jay Nixon’s veto of a bill that would allow limited carry in schools, and also preempt local communities when it comes to open carry.
From The Firearm Blog: Guns, Ignorance and Superstition in Africa, and The Winchester 94 in WWII.
Mike McDaniel of Bearing Arms:Â A Submachine Gun Primer.
The World Is Not As It Should Be
I’ve followed Megan McArdle since her days as a self-publishing penurious blogger through her gigs at the Atlantic, the Daily Beast, and now Bloomberg News. I don’t always agree with her, but she’s a thoughtful writer. And her comments are refreshingly multi-partisan (to the point of ideologues from all points of the political compass calling her a hack for their enemies.)
One article that recently caught my eye started from a discussion of the recent revelations that, yes, Virginia, some people will hack other people’s cloud storage accounts and distribute them far and wide. She then segues into why we can’t social engineer away crime:
[Y] ou cannot possibly subscribe to the idea that only social sanctions, well-designed law-enforcement penalties and a more equitable welfare policy stand between us and a nearly-crime-free utopia.
The point is that crime still happens even when everyone agrees that it is wrong, and crime still goes unpunished even when we would very much like to punish it. That’s because many people are … well, something that’s not printable on a family blog. Let’s just say that a troublesome minority of people will ignore basic decency and morality and do terrible, wrong things to get what they want.
The conclusion of the piece is one that I think readers here will agree with. “It is not “victim blaming†to urge their targets to protect themselves from that threat.†All together, a nice justification of the right to self defense.
The Best Kind of Correct
It is what you get when you have to rules-lawyer around a 80-year old law intended to prevent ownership of anything that wasn’t a hunting or fowling piece by the poor, then clumsily edited by politicians to exempt handguns when it turned out that an effectively-complete ban on anything that was smaller than a breadbox was politically untenable.
Now, Linoge notes that there are two pieces of arcane interpretation of unclear law that make this a pistol instead of Any Other Weapon or a Short-Barreled Rifle; and that the BATFE could change their minds at any time. I have to wonder, though, if the BATFE is wary of doing so given that the arcanities of the GCA that separate those three categories are actually quite hard to explain to the layman judge; and that they might have some difficulty keeping a prosecution based on where the lines were drawn in their own admin proceedings these days…
Historically, the BATFE has preferred to rule by interpretation rather than regulation, probably because there’s less oversight on that process. But it has bitten them in the nethers a few times, and with the decade-long trend of various pro-firearms-rights organizations willing to actually make federal cases out of infringements, I have to wonder if the BATFE permanent leadership is a little leery of what might happen in a real court instead of their administrative proceedings.
As a side note, I want one; but may not have one as long as I live in NJ. As a pistol, it’s way over the line of being an “assault firearm†(A semi-automatic pistol with a detachable magazine that has a magazine outside the handgrip, barrel shroud, weight of 50 oz or more, AND is probably a semi-automatic version of a fully-automatic firearm, well more than the 2 strikes permitted). Which reminds me, does anyone know why the federal ban and its imitators has that odd weight restriction?
Glad to See Tam Back
Tam is blogging again, though with comments switched off, which is just fine by me since other bloggers don’t have time to read or make comments to begin with. Those who were following closely probably saw the viles of 100% Grade A unadulterated crazy left scattered around the blogosphere (including here until I nuked it) by the source of all this. Putting up with crap like that on top of putting up content every day is a tough lot, so if you care to encourage Tam to continue on, hit the tip jar on her sidebar.
Self Defense in NJ
New Jersey publishes the jury instructions online in PDF and DOC format (link is to a PDF table of contents). I once sat as a juror in an aggravated assault and unlawful use of a weapon case (a stabbing in a public place) where the defendants claimed self-defense. At this point, the details are unimportant, except that in the course of the trial I received an education in the standards by which actions in self-defense are to be judged in courtrooms in NJ. This, of course, is of utmost importance to know for anyone who owns a firearm and keeps it in functional condition, even more so if you plan on carrying a firearm in public (not an option in NJ for the regular person, of course.) It is, however, a good idea for anyone to be aware of, both for their own personal legal safety and also to be a well-informed person. Well-informed or not, I am not a lawyer, please consult one before believing anything or everything you read on the internet about the law.
One thing about jury instructions that I believe to be superior to reading caselaw and statute law and attempting to interpret, is that they are written to explain the law as-applied for the benefit of the layman, rather than a lawyer, judge, or legislator. Technical terms are explained in layman’s term, and while can lead to leaky abstractions, it’s good for an overview.
The section I’m going to be looking at in this post is found in Chapter 3 “General Principles of Justification†– specifically
JUSTIFICATION – SELF DEFENSE In Self Protection (PDF)
JUSTIFICATION – USE OF FORCE IN PROTECTION OF OTHERS (PDF)
JUSTIFICATION – SELF DEFENSE USE OF FORCE IN DEFENSE OF PERSONAL PROPERTY (PDF)
JUSTIFICATION – USE OF FORCE UPON AN INTRUDER (PDF)
The middle two I’ll just touch on briefly, as they are rather wordy explanations of some pretty simple concepts.
First, let’s look at the general case, Self Defense in Self Protection, excerpted below
The statute reads:
“The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him/her of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.
The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
For example, if one were to purposely fire a firearm in the direction of another person, that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the victim of the threat believe that the defendant will use the firearm if necessary is not an example of deadly force.A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was.
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.
If you find that the defendant knew that he/she could avoid the necessity of using deadly force by retreating, provided that the defendant knew he/she could do so with complete safety, then the defense is not available to him/her
So we have a proportionality requirement in NJ – you can’t use deadly force except in reasonable belief that such force is necessary and (for lack of a better word) proper. My problem with this is that the average person does not really believe that an unarmed attack may “create a substantial risk of causing death or serious bodily harm.†See, e.g, the Zimmerman “trial-by-press†or pretty much any self-defense incident where the attacker was unarmed. I don’t see this changing any time soon, either.
The really scary thing, from the point of view of use of deadly force in self-defense is the second highlighted passage. This one requires that the defender be a mind-reader, and be able to distinguish in the heat of the moment whether someone who offers a threat of violence is sincere about it or not, or is merely trying to scare the defender. I about fell out of the jury box when I heard that part of the instruction; as the judge made it clear that a mere threat was not sufficient. I am given to understand this is outside the mainstream of US law on self-defense, but I’ve not made any more than a cursory study of non-NJ law. So, in NJ it would appear you have to let them shoot/stab/swing first if you wish to use deadly force in self-defense (in public, anyway, see below). UPDATE: Mike, below, points out that the sentence actually refers to the defendant, meaning that the jury instructions say that you threaten to shoot someone as part of your self-defense, that is not considered use of deadly force. Since you can use force to defend yourself against the threat of force, it would appear that in the face of a threat of deadly force you may actually respond with use of deadly force. In theory, anyway.
Finally, there is a duty to retreat (with the apparently usual “in complete safety†caveat) prior to the use of deadly force (but not, apparently, prior to the use of force).
In all cases,
The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue.
Which is something, I guess.
Use for force in protection of others is basically the same as using force in defense of yourself:
… the use of force upon or toward that person of another is justifiable to protect a third person when:
(1) The actor would be justified … in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect and
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.
Interestingly enough, the defendant’s knowledge of the situation, not the actual facts of the situation, apply
In applying this test [of reasonable belief] you are instructed to disregard any finding that the person in whose behalf (defendant) intervened was in fact the aggressor or that no defensive measures on his/her behalf were actually necessary, but you may consider everything defendant knew when he/she acted, including these same factors if you find that he/she knew them.
The rest of the instruction basically summarizes the duties and rights incumbent on the use of force on one’s own behalf, and would appear to be intended for use with the appropriate jury instruction for those cases.
Use of force in defense of personal property – you basically can’t use deadly force at all, and use of non-deadly force is limited in several ways. Since this is a firearms rights blog, and since actual use of a firearm is deadly force (and brandishing one without intent is unwise), I’ll give it a pass.
Use of force on an intruder is an exception to the general rule requiring retreat, and there is no direct mention of proportionality; though the instructions do not specifically disclaim proportionality. However the conditions under which a defendant is justified in using force include refusal of an intruder to disarm, surrender, or withdraw.
Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
For the force used by the defendant against another to be justified, the following two conditions must exist:
1. The other person (victim) was an intruder who was unlawfully in a dwelling. An intruder is one who is unlawfully in the dwelling–that is, he/she was not licensed or privileged to be in the dwelling. The term “dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is used as a person’s home or place of lodging. (A dwelling includes a “porch or other similar appurtenance.”)
2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action.
Now, absence of evidence is not necessarily absence of evidence, but the two highlighted sections suggest that the normal rules of proportionality of force are suspended. This is definitely someplace I’d like actual legal advice on, though; but I’m not going to pay Mr. Nappen’s consulting rate to get an answer to, or buy his out-of-print book at over $100 to answer, at least not today. This eventuality was brushed over by the judge in the case I sat on the jury on (he did mention it, though, despite there being no chance of the defendants using this defense), possibly out of a sense of completeness.
Anyway, the state of jury instructions covering the use of force in NJ suggest that it’s not really a good idea if you have any alternatives, but it is an alternative in extremis.
Pretty Guns
I don’t know about you, but it’s already a point in the week where I just need to admire some pretty guns. So how about these?
Smith and Wesson .32 Single-Action Revolver, Serial no. 94421.
Smith and Wesson New Model No. 3, .44 Caliber Double-Action Navy Revolver, serial no. 23060.
I was sure that one time or another I had blogged about the Tiffany decorated guns before. However, I can’t seem to find any reference in the archives. But who really cares? Pretty guns are pretty guns worth sharing.
Regardless, these are works of art, which probably explains why they are on display in the Metropolitan Museum of Art in New York City. I am actually not much of a fan of the other Tiffany guns. They are beautiful in their own way, but they just seem a little blah compared to the colors and flair of these two.
I was reminded of this great display by a link to this article.
What an NFL Suspension & Atlantic County Pre-Trial Diversion Crime Looks Like
The NFL & their anti-gun partners in the Atlantic County, NJ (feel free to post your displeasure on their FB page) prosecutors office would like to provide this illustrated to how to stay out of too much trouble:
That’s what a two game suspension looks like in the NFL. (Now, I’m sure the NFL would like to point out that if they taking a “beating” in the media and from fans over the incident, they may claim that the “discovery” that the victim is/was pregnant increases the suspension to six whole games, gosh darn it!) This is also the illustrated guide for how the Atlantic County prosecutors view not-so-innocent mistakes worthy of pre-trial diversion programs so that you never have to see the inside of a jail cell once you’ve lawyered up.
However, if you’re a black woman arrested after being pulled over for a vaguely claimed “unsafe lane change,” then you’re going to rot in jail for daring to believe that New Jersey recognizes your Second Amendment right to defend yourself.
We hope this illustrative guide was helpful to help you understand the slaps on the wrist standards for these two anti-gun groups. If you’re a man strong enough to take down a woman in one punch – and decide to do it against your pregnant fianceé – that’s no biggie, as long as you have a lucrative sports contract since you need to be out of jail to protect your image and support your family. However, if you’re a single mother whose children rely on you to provide for them without the comforts of a sports career, then you’re clearly a true danger to all around you and deserve to sit in jail while your kids are left to family and/or the system.
Radley Balko on Police Militarization
This is a 42 minute long interview, but worth your time:
What Would Scottish Independence Mean for Scottish Gun Rights?
The referendum on Scottish independence is coming on September 18, 2014, and it’s looking like independence is gaining momentum. I don’t have much of an opinion on the topic as an American, but I’d probably vote in favor of union if I were to have a say. There’s an awful lot of too good to be true promises being made by the Scottish government, and it strikes me that the Scottish government might be a good deal more socialist without having to compromise with less socialist Englishmen. But what affect would Scottish independence have on Scottish gun laws? The document is very (probably intentionally) vague:
- How will access to firearms be controlled in an independent Scotland?
The Scotland Act 2012 provided the Scottish Parliament with limited additional powers to introduce licensing for airguns. Work is underway by the Scottish Government to introduce a licensing regime for airguns in Scotland. However, Westminster has refused requests to devolve powers fully to allow decisions on the licensing and control of firearms to be taken in Scotland.
Independence will give Scotland full powers to control firearms in Scotland. Firearms legislation and licensing in an independent Scotland will be simplified, made easier for the public to understand and for the authorities to enforce.
They say they’ll make licensing easier. They don’t make clear whether they would ease the handgun ban currently imposed on Scotland. Given that the Scottish government claims to want to regulate air guns more thoroughly than does the UK (which leaves them relatively unregulated up to a certain muzzle energy, after which a Firearms Certificate is required), I wouldn’t be too optimistic that much of anything will actually change if I were a Scottish shooter.
I tend to think that Independence will make both countries weakener, and given that Tsar Vlad is on the march, I’d not think too highly of some pie in the sky nonsense like eliminating nuclear weapons.