Clayton Cramer is working on finishing up the final cuts and edits for the Academics for the Second Amendment‘s brief in the McDonald case. They are also looking for donations to help offset the costs of filing the brief.
Tracking the Blood in the Streets
This editorial could have been written by our friend Mark in the comments of a previous thread. Perhaps we are seeing a new tactic against concealed carry, to claim it’s just dangerous, and then say there’s no way to prove its safe because the evil gun lobby won’t let us see who has licenses. Good to see VPC’s allies in the media willing to help this meme along.
Support for McDonald from Mordor
Chuck Michel is reporting that:
Today, 34 California District Attorneys and 8 Nevada District Attorneys joined a consortium of other “friends of the court†to file an “amicus†brief in the United States Supreme Court in the cases ofMcDonald v. Chicago (08-1521) and NRA v. Chicago (08-1497). Both cases ask the Supreme Court to hold that the Second Amendment of the United States Constitution stops state and local governments from infringing on the right to keep and bear arms, just as the Supreme Court has already held that the Second Amendment stops the federal government from infringing on that right.
For those of you who are curious, the California AGs who are signing on are Will Richmond (Alpine), Todd Reibe (Amador), Michael Ramsey (Butte), John Poyner (Colusa), Michael D. Reise (Del Norte), Vern Pierson (El Dorado), Elizabeth A. Egan (Fresno), Robert Holzapfel (Glenn), Edward Jagels (Kern), Ron Calhoun (Kings), Gilbert Otero (Imperial), Michael R. Keitz (Madera), Robert H. Brown (Mariposa), Meredith Lintott (Mendocino), Larry Morse (Merced), Gary Woolverton (Modoc), George Booth (Mono), Tony Rackauckas (Orange), Brad Fenocchio (Placer), Candice Hooper (San Benito), Michael Ramos (San Bernardino), Bonnie M. Dumanis (San Diego), James Willett (San Joaquin), Christie Stanley (Santa Barbara), Gerald C. Benito (Shasta County), Larry Allen (Sierra), J. Kirk Andrus (Siskiyou), David W. Paulson (Solano), Carl V. Adams (Sutter), Greg Cohen (Tehama), Michael Harper (Trinity), Phil Cline (Tulare), Gregory Totten (Ventura), and Jeff Reisig (Yolo).
The Nevada Attorneys General who signed on are Arthur E. Mallory (Churchill), Todd Leventhal (Esmerelda), Russell D. Smith (Humboldt), Hy Forgeron (Lander), Robert Auer (Lyon), Cheri Emm-Smith (Mineral), Jim Shirley (Pershing), and Richard Gammick (Washoe)
In addition to that, there are several California police organizations who have also signed on. California has fifty-eight counties, so this represents 3/5ths of California’s total counties, including some of their more urban counties. Nevada has sixteen counties total, so 1/2 of the counties in Nevada have signed on, including Washoe county which contains Reno and Tahoe. It’s actually kind of disappointing more didn’t sign on in Nevada.
Quote of the Day
From the comments at Richard Fernandez’s blog:
I have always been of the view that carbon based AGW is not proved. It could be true, but the evidence hasn’t been put forward. It would be ironical if it were actually true. But who would believe it now? What these “climate scientists†should have done is conducted the inquiries transparently, with open source code for their models and openly available data for their factbase.
Then everyone could have followed along where ever it led. But somewhere someone got greedy. The prospect of being the Master of the Universe danced like sugarplums in their heads. The Ring grew and took possession of their minds and ate them out. Finally, climate science became a climate carnival. And now the geek just ate the chicken.
Scientists are fallible people too, and no process involving people is going to be immune from politics. Take scientific claims with a grain of salt. The scientific process is much like our government. Theoretically, it’s a very well designed system, with lots of checks and balances to help ensure the best results. But when you fill the system with people, it never works as well as it would seem to in theory.
Another Brady “Cop Killer” Gun
Looks like Kel-Tec is making a semi-auto pistol in .22 Magnum. Of course, this fairly common and 50 year old rimfire caliber isn’t generally thought of as an armor piercing, but it’s performance is very close to the 5.7mm round fired by the much maligned FN Five-Seven. Will the gun control crowd advocate banning this gun too?
Ruling on Tennessee Restaurant Carry
This ruling is certainly a setback, but it doesn’t yet change the law for most of the state, as far as I can tell. SayUncle is checking with his peeps too [UPDATE: Looks like it only applies to Davidson County]. Hopefully like National Park Carry, this will be a short lived victory for the other side, one way or another.
So Begins Thanksgiving Vacation
Leaving work shortly, and will be on vacation for the rest of next week. Blogging will continue, but maybe not on the actual holiday. It’ll actually be a bit of a working vacation, since I have crap to do here that needs to be done by the end of the year. I’m mostly taking off because I have a lot of use-it-or-lose-it vacation left, and I might as well use it as an excuse to work (a lot less) from home.
Gun Control Groups Misleading on Ft. Hood
Surprise, they are claiming their terror watch list legislation would have made a difference, but it wouldn’t have. There is no rule, law, or regulation that is going to stop all tragedy, or even most tragedy. Sometimes bad things just happen. If anything, Ft. Hood is an example of the folly of counting on the government to protect us.
Holder on Gun Policy
The Law Enforcement Alliance of America is reporting on Holder’s testimony before the Judiciary Committee two days ago:
Transcribing General Holder:Â “The position of the Administration is that there should be a basis for law enforcement to share information about gun purchases.” “… [It’s not] inconsistent to allow law enforcement agencies to share that kind of information, for that information to be retained and then to be shared by law enforcement.” “It seems incongruous to me that we would bar certain people from flying on airplanes because they are on the terrorist watch list and yet we would still allow them to posses weapons.”
So the Administration is on record as being in favor of denying Americans constitutional rights based on their presence on a secret government list, and quite probably based only on their sharing a name with someone who is on the list. Will Congress act here? Probably not. But I also wonder what kind of information sharing Holder thinks is allowed by law. The law is pretty clear that if someone passes the background check, the identifying information in the record is destroyed.
Duty to Retreat in Common Law
With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.
But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:
Burglary, or nocturnal housebreaking, […] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger […] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]
Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:
In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.
Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.
Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him […] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.
Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.