Saturday, August 13, 2011

Yet another negligent discharge

Dog Gone wanted me to post this. For some reason Hindi transliteration was enabled, but I managed to fix that! But it was buggering up my posting.

<a href='' target='_new' title='Soldier Gets His Hat Shot Off' >Video: Soldier Gets His Hat Shot Off</a>

The Bloody Code

I don't think that Mike knew that amongst my vast qualifications that I am qualified to sit as Second Chair on Capital Murder trials and do Death Penalty Post Conviction Relief advocacy. Not that I have done that many murder trials, but anyway. And since Mike said that one of his interests was the death penalty, it seems appropriate that I do some posts on that topic.

But I am more interested in a historic topic now, the Bloody Code which was the name given to the English legal system from the late 17th century to the early 19th century (in particular, the period between 1688 and 1815). This was not the name used for the legal system at the time, but was given at a later time due to the sharply increased number of crimes that attracted the death penalty.

No of crimes carrying the death penalty
1688 50
1765 160
1815 225

There were many reasons why the English legal system was so harsh at this time. First, the attitudes of the wealthy men who made the law were unsympathetic. They felt that people who committed crimes were sinful, lazy or greedy and deserved little mercy. Secondly, since the rich made the laws they made laws that protected their interests. Any act which threatened their wealth, property or sense of law and order was criminalised and made punishable by death. You could be executed for stealing anything worth more than five shillings (equivalent to approximately £30 today)! Thirdly, the law was harsh to act as a deterrent.

It was thought that people might not commit crimes if they knew that they could be sentenced to death. This was also the reason why executions were public spectacles until the 1860s. The authorities believed that hanging criminals in public would frighten people into obeying the law and refrain from committing crime. From 1816 in Durham, hangings were carried out at the front of the Crown Court with crowds of people coming from far and wide to watch. Some well-off members of the public even hired the balconies of local houses and the Dun Cow pub to get a better view! In London, the hangings were held in Tyburn with thousands turning out. The intention was clearly to act as a deterrent to others to observe the laws--or else.

Some of the crimes carrying the death penalty in the 1700s
  • stealing horses or sheep
  • destroying turnpike roads
  • cutting down trees
  • pickpocketing goods worth more than one shilling
  • being out at night with a blackened face
  • unmarried mother concealing a stillborn child
  • arson
  • forgery
  • stealing from a rabbit warren
  • murder

Offenders escaped the noose at many points: sometimes the charge was reduced to below capital levels (this could go to ridiculous lengths, as in the charge "Stole £5 value 10 pence"). Juries were reluctant to find people guilty. Judges let offenders off and offenders sometimes agreed to join the army or navy instead. As a last resort, petitions for mercy were often answered. The system therefore held the death threat in readiness, but could show mercy: either way, power of life or death lay with the powerful. Amazingly, fewer people were hanged under the Bloody Code than before it. Numbers of people hanged per year in London and Devon:

Early 17th century Early 18th century
London 150 20
Devon 25 3

What was the reason for the reticence to resort to Capital punishment? It is fair to say that the 'Bloody Code' did not work very well. Trials for serious offences sometimes lasted only a few minutes, there was often no chance for the defence to present their case and, to the modern eye, it seems like it was a lottery whether the accused would be found innocent or guilty. As always, it was easier if you were rich. You could afford proper legal representation and persuade the wealthy and famous to act as character witnesses for you.

However, the main problem with the 'Bloody Code' was that juries were often unwilling to find the accused guilty knowing that the punishment was execution. Indeed, so desperate were some judges to secure results that they deliberately under-valued stolen goods so that the accused would no longer face the death penalty. Evidence suggests that despite the 'Bloody Code' fewer people were hanged in the 18th century than previously. It has been estimated that around 200 hangings took place each year in England and Wales at this time.

Other punishments also existed besides the death penalty. In medieval times, criminals could be branded (burning a mark onto the skin), or mutilated (chopping off a limb such as an arm or a leg). The guilty could also be publicly whipped or humilated in the pillory or stocks.

Even those sentenced to death might not be executed at during the time of the Bloody Code. Criminals were often given the chance to avoid death by joining the Army or the Navy or to be transported to the colonies in America and Canada, and later Australia. The Transportation Act of 1718 introduced penal transportation as a punishment. People convicted of capital crimes had their sentences 'commuted' to 14 years or life in the Americas. Convicts found guilty of non-capital crimes received seven-year sentences. Between 1718 and 1776, over 50,000 convicts were transported to Virginia and Maryland in the modern United States. In fact, transportation became a very popular mode of punishment. It has been estimated that over one-third of all criminals convicted between 1788 and 1867 were transported to Australia and Van Diemen's Land (now Tasmania).

The other form of punishment which became increasingly popular with the authorities was incarceration in prison. The reason for changes in criminal punishment came from the fact that the ‘Bloody Code’ was arbitrary and savage and that the reformers’ stance was beginning to be seen as the morally just position. Penal reform began with the abolition of capital statutes urged by Romilly and Mackintosh and largely carried out by Sir Robert Peel and Lord John Russell when Home Secretaries in the 1820s and 1830s. It gathered pace as the government took an increasing role in the organisation and supervision of prisons with the opening of Millbank in 1816 and Pentonville in 1842, with the creation of the prison Inspectorate in 1835 and the centralisation of the whole system under the Home Office in 1877.

In 1823 the Judgement of Death Act 1823 made the mandatory death penalty discretionary for all crimes except treason and murder. Gradually during the middle of the 19th century the number of capital offences was reduced, and by 1861 was down to five. These were murder (suspended 1965, abolished 1969), piracy (1998), arson in a naval dockyard (1971), espionage (1981) and high treason (1998).

The London Metropolitan Police, established in 1829, promoted the preventive role of police as a deterrent to urban crime and disorder.

My real reason for mentioning the Bloody Code is that it would have been known to the Founders at the time of the War for Independence. It is the background against which the phrase. "no cruel or unusual punishments" originated. Additionally, it was a reason for the due process guarantees found in the Bill of Rights. Yet, we are seeing a culture that would return to the culture of the Bloody Code, or worse in the United States? Why?

See also:
Wikipedia--Bloody Code
Crime and Punishment in Durham > The Bloody Code
The National Archives--Crime and Punishment
Women under the “Bloody Code”
Punishment and the Bloody Code

Guns and Anger Management

As with the riots in the UK, simply responding harshly doesn't appear to curtail a problem.  If locking this kid up was the solution, he wouldn't continue to be violent in jail - as he did.  This kid as a lot of problems, and he is going to continue to BE a problem for everyone else around him until those problems are resolved by more than just locking him up.  Looking at this photo, the thought which occurred to me was to wonder if he might be suffering from fetal alcohol syndrome.  This would be consistent with some of his features, his behavior, and his description of his mother's alcohol consumption.
"Fetal alcohol exposure is the leading known cause of intellectual disability in the Western world."
Violence and access to guns by theft is only the tip of the iceberg, and probably the wrong thing to be focusing on in sentencing this kid.  What he did was clearly horrible, and clearly a terrible crime which merits strong consequences.  But if he is simply locked up, that violence, and criminal conduct will continue and probably worsen, both in prison and when he is released, if something to address such an underlying problem doesn't take place.  Because we have a lot of guns in this country, many of them not well secured; it is very likely that someone like this will find ways to acquire weapons and to act violently again.

My sympathy goes out to the teachers who have to deal with kids like this every day.  We don't pay them enough; the idea that we pay them too much is wrong.


Teen sentenced to 35 years for school shooting

updated 8/12/2011 6:49:07 PM ET 2011-08-12T22:49:07
MARTINSVILLE - A central Indiana teenager convicted in a school shooting that injured a former classmate was sentenced to 35 years in prison.
Sixteen-year-old Michael Phelps appeared before a Morgan County judge Friday in the March 25 shooting of 15-year-old Chance Jackson. His sentencing in the county seat of Martinsville took most of the day.
Phelps left the Morgan County Courthouse without comment after learning his sentence of 35 years - 30 in prison, five on probation - for attempted murder. It's the culmination of a school shooting case that forever changed Martinsville and victim Chance Jackson.
"The judge did find more aggravators that mitigators in this case and, as an advocate, that's always what we like to prove and he went beyond the presumptive sentence, which is what we wanted him to do," said Morgan County Prosecutor Steve Sonnega.
"We're satisfied," said Jackson's mother, Rebecca. "I think Chance has an opportunity to move on now."
Last month's guilty plea left no doubt Phelps intentionally shot his former classmate at Martinsville West Middle School in March. But his punishment came down to testimony before Judge Thomas Gray.
The defense and prosecution painted two very different pictures of Phelps. His attorney described the boy as a scared, scarred 16-year-old, who was the victim of his own toxic family upbringing.
A psychologist who examined Phelps says the youth's troubled family life left him with deep anger. Jeff Vanderwater-Pearcy testified Friday during a sentencing hearing in a Morgan County court that Phelps never knew his biological father and felt that his mother chose alcohol over him.
Vanderwater-Pearcy says anger became Phelps' main way of coping with frustration.
Jackson's mother didn't buy it.
"I grew up with an alcoholic parent and Chance grew up without a father, so I just don't totally agree with that," Jackson said.
Prosecutors, on the other hand, described Phelps as a premeditated murderer who stole a gun, and used Facebook posts and text messages to plan to kill a student, then shot him not once, but twice.
Phelps' attorney, Steven Litz, plans to appeal. He says his client never should have been tried as an adult.
"The idea that we abandon juveniles to the wolves for an adult term is unbelievable to me. We do plan to appeal the waiver to adult court as well as the 30-year prison sentence," Litz said.
In court, Phelps read a handwritten statement, followed by a brief apology to Chance Jackson. But Jackson's family says their pain goes on. Chance has another surgery in November for a hernia caused by the shooting. He has permanent scars on his torso and he's undergoing psychological counseling, after being diagnosed with post-traumatic stress disorder.
Judge Gray said the scars in Martinsville are permanent too, telling Phelps in court, by choosing to kill and doing so in front of children, "you stole the community's innocence."
The judge also cited as one of the aggravating circumstances in this case - the fact that Phelps fashioned a weapon while in jail. Phelps' attorney even said his client was hard to control and he even though he told him he needed to be a saint in jail, he wasn't. In fact, shortly after the sentencing, prosecutors filed seven additional charges against Phelps, stemming from his behavior while in jail.
Those charges include intimidation, obstruction of justice, and causing battery with bodily injury. Prosecutors say while in jail, Phelps threatened witnesses, including one who was beat up the day before his original trial.

Jon Stewart on Megyn Kelly

12-Year-Old Charged - Gun-Owner Dad Gets a Slap on the Wrist

First of all, there's something terribly wrong here. I can understand not being angry and vengeful towards the kid, but the gun-owner dad is another story. Allowing kids access to guns should be an extremely serious offense. Men who are responsible for that should pay a heavier price than a slap on the wrist and they certainly should not enjoy the continuation of their gun rights.

Secondly there are the improvements in gun law that the grieving parents would like to see.

The Naumkin's say they'd like to see all gun owners have liability insurance for their firearms, and take a required safety course every three years. They want that course to include family members of a gun owner, as well.

Yuri Naumkin would also want to see signs displayed at homes with guns to increase transparency.
"We're supposed to have a right to know who they are and they have a right to express it freely," said Yuri.
"Transparency" and the "right to know," those are interesting concepts. What do you think? Isn't it reasonable for parents to want to know if there are guns in the homes where their children visit?

Well, as reasonable as that desire might be, I'm afraid it wouldn't be enough.  Even if every home with guns were marked, it still depends upon the level of responsibility of the adults who reside there.

I think it always gets back to increased controls on gun owners. Safe storage laws, mental health screening, mandatory training, and severe sanctions for infractions, these and other policies would help.

What do you think?  Please leave a comment. 

Legitimate DGU or Just Additional Panic

It's an individual right

The issue isn't whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question we are trying to decide. The text of the Amendment, its history, and the decision in United States v. Miller, 307 U. S. 174 (1939), provided a clear answer to that question.

In that case. The Supreme Court upheld a conviction under that the National Firearms Act holding that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment The Court took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

But it's a right of the people

The phrase "the people" is a term of art used in select parts of the Constitution. This term "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

As I like to point out, The Constitution begins with the phrase "We the people", but did the entire population take part in the drafting of the document,or was it the representatives of the people who did that task?

In the Heller-McDonald decisions, the majority opinion interprets the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments to “law-abiding, responsible citizens.” But the class of persons protected by the First and Fourth Amendments is not limited because felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.

The Heller-McDonald decisions neglect the manner that the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship. It grants the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

As used in the Fourth Amendment, the term “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment . For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment . Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment , the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

There is also the rule of Statutory interpretation called Ejusdem generis ("of the same kinds, class, or nature") which is when there is a more specific descriptor is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

The Latin words ejusdem generis (of the same kind or nature), have been attached to a canon of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.

Thus, the general term "people" in the Second Amendment is limited by the restrictive "well-regulated militia" in the text.

Thus, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

And Here is WHY so very many people think Texans like this are crazy, and 'W'

(larger type, emphasis mine - DG) from
Once again, a lack of education in history, including Texas history; there have been plenty of riots in Texas over the years.  None of them seem to be resolved positively by shootings.

An older example:

And a more recent example, also including property damage and fire:

An overview, of sorts, is here:
which includes these paragraphs, although it clearly doesn't cove the second half of the 20th century, or the first decade of the 21st century :
"The most common cause of riots in the first half of the twentieth century was public outrage toward prisoners. Mob threats of violence to prisoners necessitated the use of state troops on four occasions in 1900. In 1901 three lynchings by mobs took place despite the calling of state troops; in two instances the troops suppressed the mobs. At Brenham rioting broke out over the employment of a black brakeman by a railway; it was suppressed after two days. In 1902 mob violence brought on the use of state troops three times. In one instance the mob hanged a prisoner before the troops' arrival. Troops were called out three times on this account in 1903, twice in 1904, three times in 1905, and once in 1906. The Brownsville Raidqv (1906) precipitated a serious race riot involving black soldiers. Troops were needed elsewhere in 1907 and 1908; in the latter year rioting at Slocum resulted in the killing of more than ten blacks. Other mob actions in the first decade of the century resulted from strikes at Houston in 1904 and racial tension at Ragley the same year. Riots also took place in San Antonio and Fort Worth in April and May of 1913. The Houston Riot of 1917 was started by about 150 black troops from Camp Logan, a temporary training center near the city. The riot, touched off by the arrest of a black woman, was the culmination of general uneasiness and hostility following the establishment of the camp. It resulted in the deaths of seventeen people, mostly whites; the anger of an aroused white population necessitated martial law for four days. The Longview Race Riot of 1919 also resulted in the proclamation of martial law. A strike at Galveston in 1920 produced lawlessness that required the help of the Texas National Guard. Mexia was declared in a state of anarchy because of a riot and was placed under martial law from January to March 1922. The Sherman Riot of 1930 stemmed from the arrest of a black who had assaulted a white woman; rangers were called to protect the prisoner, but a mob set fire to the courthouse and virtually seized control of the town. When troops of the Texas National Guard arrived, they were attacked by the mob, and before martial law restored order, a number of buildings were destroyed. Enforcement of oil-conservation laws in the 1930s also necessitated the use of the National Guard to suppress mob lawlessness.
The guard was also called in September 1937 to suppress mob violence at Marshall and again to quell the Beaumont Riot of 1943. In Beaumont a white mob, outraged at the assault of a white woman by a black, terrorized the black section of town. Two died and 100 homes were destroyed. In 1955 the National Guard was used to control a riot at Rusk State Hospital. In May 1967 a riot that occurred among black students at Texas Southern University in Houston resulted in the death of one policeman and the wounding of two students and two police officers. Though the immediate cause of the riot was the arrest of a student, the night-long incident was related to general racial tension. "
Both massive property damage - as in the example of the destruction of 100 homes - and racial tension appear to be factors in common with the UK rioting and the history of riots in Texas. 

It wouldn't surprise me if the other people in the room when this woman spoke up actually had a better grasp of Texas history than this dim bulb, in spite of being, presumably, mostly citizens of the UK.

Where are the guns? A Texan's take on the UK riots

Daniel Deme / EPA
Police officers patrol the streets of Camden, in north London, on Monday. An extra 10,000 officers were brought in from other parts of the country to help to quell rioting and looting that engulfed parts of the capital.

By Heather Lacy, NBC News assignment editor
LONDON - We’ve been on five-day roller-coaster here in the NBC News London bureau, what with riots and looting breaking out across the capital and the country.
We’re all wondering if the “criminality pure and simple,” as Prime Minister David Cameron put it, will pop up again, or if the uneasy calm we have now will hold.
Everyone in the newsroom has been discussing the recent violence, the worst this country has seen in three decades.  Why would people set fire to stores, cars and homes, looting, wounding, killing and destroying property as they go? Who could do this?  How did the police
fail to bring order for days?
As everyone in the newsroom debated the use of force – whether to use rubber bullets, tear gas, water cannons, Tasers, even bean-bag guns –  I wondered why they were wasting their breath.
“If your cops had guns, day number 2, 3, 4 and 5 of this, it would NOT have happened!” I said at a recent meeting.
People stopped talking and looked at me.  A couple giggled. Those who know me weren’t too horrified, but others stared at me like I’d just drop-kicked a puppy.
Transplanted Texan
I’m a relatively recent London implant, having moved from Texas a few years back.  I’m surrounded mostly by Brits who are usually amused and occasionally appalled at some of my comments.
“In fact, why are we even talking about this?” I asked.  “A couple batons aren’t gonna do the trick when the rioters have Molotov cocktails, bricks and knifes, and they outnumber the police.”
When I first moved here I was surprised when I discovered that “bobbies on the beat” (cops on the street) don’t carry guns. Apparently, when the Metropolitan Police Service was founded they thought arming the officers would scare the public.  How quaint, I thought.
There is an armed contingent, the Authorised Firearms Officers, which makes up about a third of the Met’s numbers, but they don’t patrol routinely and are only called in when needed.   And getting a firearms certificate as a private citizen is very difficult, if not impossible, unless you live in the countryside.
Now, I’m not suggesting police just go out and start capping people carte blanche, but I can assure you those brave and defiant “hooded youths” (as they were described by many a British broadcaster) would not have been so brave or defiant if they had a lethal weapon pointed at them.
Yes, there’s an argument for unarmed police, and yes the British police do have an armed unit, but I’m not going to get into the minutiae. I just want to know, what’s so bad about a show of force in the form of a gun?
I mean, you don’t see anything like this kicking off in Texas, do you?
Yes.  You do. 
What an embarrassment that this person is in a news position, with such a bacground of ignorance.  Odds are she knows even less about the UK and their history, or world history generally, than what she knows of Texas.  The history of Texas is not the same as the myth of guns in Texas, or the myths of "Texas-style" law and order.

Friday, August 12, 2011

As Qualified As Any NRA-Certified Instructor

Woman  sues gun club:
The Idaho Mountain Express ( ) reports Nan T. Bassett, of Salt Lake City, sued the owner of resort three weeks ago in Idaho's 5th District Court. Bassett claims inadequate instruction contributed to July 17, 2010 shooting accident at the Sun Valley Gun Club.

Bassett says she was loading a gun when it fired and hit the ground, spraying shrapnel and gravel onto her legs, which required medical attention.

According to her lawsuit, Bassett claims she informed the club she had previously never fired a gun and was given a brief demonstration but not properly instructed on how to safely handle a firearm.
This is what happens when you combine wanabe gunloon with firearm industry whose sole motivation is making money.

CCW Holder Exercises 2A Right to Kill Wheelchair-Bound Invalids

The face of today's CCW holder
Another mentally ill CCW holder:

A dispute over noise may have preceded the horrifying scene in Brighton on Wednesday when authorities say a shotgun-toting man with a history of mental illness fatally shot a 78-year-old man in a wheelchair at a city-owned complex for the elderly and disabled, then fired at and narrowly missed police and medics.
Remember this the next time Jay Grazio and Andrew Johnston whine about how tough Massachusetts' gun laws are.  Apparently, they're so 'tough' that someone who is so mentally ill that he can't work and is institutionalized can get a CCW permit.

An MD Explains Why Gunloons are Deluding Themselves

The A. A. P. takes the position that guns are a public health issue and that pediatricians have a duty to ask about ownership because firearm injuries affect a large number of their patients. According to the group, firearms account for a third of all deaths from injury among teenagers and more than one in five deaths from injury among people ages 1 to 19.

The academy recommends that parents not have a gun in the home. When guns are present, it suggests they be kept unloaded, in a secure, locked place, with the bullets stored separately.

“There’s no political agenda — we’re talking about the safety of children,” said Dr. Lisa A. Cosgrove, president of the group’s Florida chapter. “The best way to protect them is to teach the parents how to protect them.”

Because the new law directly conflicts with accepted medical practices, some of my pediatrician colleagues have told me privately that they worry that not asking about firearms could put them at risk of a malpractice claim if the patient subsequently dies of or is injured by a gunshot. Psychiatrists routinely inquire about guns, too, and the law’s requirements potentially place them in a legal predicament.

Rep. Phil Hinkle (R-IN) is the NRA

...and he's anti-gay as well.  Well, sometimes:
The Indianapolis Star obtained e-mails sent from Rep. Phillip Hinkle's (R) publicly listed personal address, responding to a Craigslist posting by Kameryn Gibson that said "I need a sugga daddy." Gibson told the Star that the post was in the "Casual Encounters" section under m4m, or men for men. He used his sister Megan's e-mail address -- and she later sent the e-mails to the Star.
Cannot be a long time sugar daddy," says the e-mail response from what is allegedly Hinkle's address, "but can for tonight. Would you be interested in keeping me company for a while tonight?"

"I am an in shape married professional, 5'8", fit 170 lbs, and love getting and staying naked," the e-mail says.
Another e-mail says: "If u want to consider spending night u might tell ur sis so she won't worry. Would have u back before 11 tomorrow. No extra cash just free breakfast and maybe late night snack."

Essay question for Jim, using the Rule of Law, provide a basis for the Individual right..

Given the holding in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987)

The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized militia, called the National Guard, to be armed by government); Miller, 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).
The rule of law requires deference to precedent. Likewise, the rules for constitutional interpetation require that the entire text be taken into consideration. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

The Majority opinion in Heller denigrated the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 5. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Ante, at 4. Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

Identification of language in the text that even mentions civilian uses of firearms is important since this goes to the rule of construction that no phrase is without meaning-"Expressio unius est exclusio alterius" (The express mention of one thing excludes all others) . Items not on the list are assumed not to be covered by the statute. Nowhere in the Second Amendment can one find the explicit words which allow for “the people” to own arms for personal defence or other non-military uses.

Self-defence is not explicitly mentioned in the Second Amendment (or the US Constitution).

Keep in mind that Justice William O. Douglas, who had just joined the court at the time the Miller decision had been argued, said in a later case, Adams v. Williams, 407 U.S 143(1972) at 150 -51:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [p151] secured through the Militia -- civilians primarily, soldiers on occasion.
Id. at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.

Personally, I think that someone who was a member of the Miller Court would have a pretty good idea of how Miller should be interpeted. Don't you?

The Rule of Law

This is a short and concise definition of The Rule of Law, which is a concept that the anti-government folk seem to be ignorant. The funny thing s that these people like talking about the Common Law and this is very much a common law concept.

I will add that the law of the United States at both the federal and state levels was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations. Still, the US Legal system is a common law system and this priciple applies.

The Rule Of Law
by Doctor Mark Cooray

The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352

"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.

The essential characteristics of the rule of law are:

i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.

Anti-Romney Commercial

A nice critique of DC v. Heller

Can be found here

It's called A Caustic Critique of District of Columbia v Heller: An Extreme Makeover of the Second Amendment

And it's well worth a read.

This is the author's bio:
In an article about the Second Amendment, an author should disclose his history in owning and using firearms. The author of this article was an officer in the United States Marine Corps on active duty from May, 1963 until September, 1969. In October, 1966 he became a Naval Aviator. He flew the F4B and F4J Phantom II aircraft in Marine Fighter Attack Squadron 323 at Chu Lai, Vietnam. During his Marine Corps service, he fired virtually every weapon in the Marine Corp’s arsenal. He is an expert marksman, both with the .45 caliber semi-automatic pistol, the .38 caliber Smith & Wesson revolver, the M1 Garand and the M14 rifles. In civilian life, post-Marine Corps service, the author has possessed and today possesses a semi-automatic pistol for defense of family and for target practice. The author is a member of the National Rifle Association.

The author has not received compensation from any source for writing this article. No
organization of which the author is a member has reviewed this article.

Florida Gun Laws

The no-guns-allowed sign already came down at Boca Raton City Hall, and firearm bans at other public buildings, parks and beaches across South Florida are soon to go.

They're always talking about the rights of gun owners, but what about the rights of non gun owners? Doesn't allowing guns in places like parks and government buildings interfere with the non gun owners' ability to safely and securely use those places? Wouldn't allowing guns in those former no-gun zones make it more likely that people will be shot by a lawfully licensed CCW guy than by a criminal?

It doesn't take rocket science to see that more mass shootings are done by lawful gun owners gone berserk than by criminals. Giving these guys free reign is a mistake. The influence of the NRA backed by its sheep-like members is responsible for lowering the quality of life in South Florida, and elsewhere.

This is further reason why Florida rightly wears the crown.

What's your opinion? Please leave a comment.

Cop Who Shot Fleeing Suspect Exonerated

The Hartford Courant reports on how they do it.

A former Hartford police officer who was arrested in 2003 after shooting a fleeing suspect, and subsequently fired before being exonerated by a jury, has settled two lawsuits with the city and expects to be back on the job by next spring.

Robert Murtha, 41, accepted the city's offer Tuesday to settle his lawsuits in return for reinstatement with the department and more than $500,000 to cover legal bills, lost pay and benefits. The city stood to lose more than $1 million had it lost its pending appeals in the civil suit and arbitration rulings. The arbitration ruling included an order to reinstate him as a police officer.
Sometimes they claim the guy who was running away turned and pointed a gun over his shoulder. Often that explanation is all it takes for a quick turnaround for the trigger-happy officer. This case took a while.

What do you think? Please leave a comment.

When Seconds Count provides a step-by-step account of the movements of the killer. Basically, as we've been reading all week, he went from bouse to house, through backyards, even chasing one victim into a neighbor's house in order to execute him, an 11-year-old.

Hance was killed by a Copley police officer, Mier said, about 10 minutes after the first 9-1-1 call was received.
What that means is the murderous rampage lasted at least 11 minutes, presuming the first call took place some seconds after the first shot. Where were all the armed neighbors?  Where were all the local CCW guys?

How many times have we heard that flippant remark, "when seconds count, the police are minutes away."  This infers that in places like Ohio where many homes have guns and the percentage of concealed carry permits is high, we don't have to wait for the police to put a stop to things like this.

Yet, as we saw in Arizona a few months ago, this is just not the case.  As with the Loughner shooting, it's a safe bet that gunowners were on hand but they turned out to be powerless to stop the onslaught of violence.

Why, I don't know, probably several reasons, but I have one theory.  The vast majority of gun owners, even concealed carry guys, are not trained for this kind of intervention.  They may think they are, but when the SHTF, as they like to say on The Truth Abough Guns, they're not up to the task.  It takes quick decisive action to intervene, and courage, knowing that getting involved, you go from being a neutral spectator to a potential target.

Most people are frozen with fear during those critical seconds or minutes. Their owning guns does nothing more than make them feel safe, and of course, increase the chances of gun mishaps of many kinds.

What's your opinion?  It seems to me this story illustrates that altough the exemplary action of the police was not as swift as we'd like it to have been, it was pretty good.  And once again we count ourselves lucky that none of the local gun owners made it worse.

What do you think?  Please leave a comment. 

Vance v. Rumsfeld Suit Passes Another Hurdle

Cross posted from Penigma; I would remind readers that this case is about a contractor who brought the illegal weapons sales (and service) by U.S. military and other contractors to the attention of the FBI, and was then imprisoned and tortured, in an attempt to prevent the illegal gun trade being interrupted.

I am impressed that the Vance suit is successfully challenging the hurdles, and as noted near the end of the article below,
"This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals."
And we will be watching for interpretation and explanations of them from the Constitutional Law Professor Blog! For those coming late to this topic, we began covering it earlier on Penigma, here.

From the Constitutional Law Professor Blog (there's some good reading here!):

August 9, 2011
Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward
A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.
In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.
If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.
I would encourage any Penigma reader who finds this issue of interest to continue reading here. You don't need to be a law professor, lawyer, or law student to understand it; it is very well written, and very interesting.

For those of us who are not lawyers or conversant in legalese, here is the definition of a Bivens suit, referenced above, from the web site definitions :
Bivens action refers to a lawsuit which is brought to redress a federal official's violation of a constitutional right. Bivens action allows federal officials to be sued in a specific manner, similar to one prescribed at 42 USCS § 1983 for state officials violating a person's constitutional rights under color of state law.
I'm glad I found this Constitutional Law Professor site; I had gotten out of the habit of reading as much in these areas, with bat-shit crazy Orly Taitz having pretty much run out of steam....or options.

Thursday, August 11, 2011

Historic Document fun!

This is Sandidge v. United States, 520 A.2d 1057 (D.C. 1987), the case that Judge Silberman decided was incorrect for whatever reason. I believe that Silberman's reason was that Dred Scot v Sandford,60 U.S. (19 How.) 393 (1857), a case relating to a fugitive slave which determined that said slave, as property did not have rights, was sufficient to overturn this judgement.

Anyway, read it and enjoy.

My question is was Silberman's reasoning sufficient for violating stare decisis? Given that the interpretation given to Miller by courts prior to the Emerson decision was pretty much consistent with this, was Scalia's reinterpretation ultra vires without the Constitution being Amended? What is the remedy for the Supreme Court acting ultra vires?

Additionally, since it is pretty much a historic fact that the Second Amendment refers to FEDERAL powers under Article I, Section 8 Clause 16, not any of those given to the states. That means that McDonald so out of wack as to be capable of being ignored? That truly requires the Constitution to be amended for it to be a valid decision.

Personally, I believe in stare decisis and the rule of law. But what is the remedy for the US Supreme Court acting ultra vires in its decisions?

Sandidge v. United States, 520 A.2d 1057 (D.C. 1987)
Cite as: 520 A.2d 1057 Can be found here

Lee A. SANDIDGE, Appellant,
No. 84-1045.
District of Columbia Court of Appeals.
Argued Dec. 11, 1986.
Decided Feb. 11, 1987.

Defendant was convicted by jury in the District of Columbia Superior Court, Ronald P. Wertheim, J., of carrying pistol without license, possession of unregistered firearm, and unlawful possession of ammunition, and he appealed. The Court of Appeals, Ferren, J., held that District of Columbia firearms statutes did not violate defendant's constitutional right to keep and bear arms.

Nebeker, J., concurred and filed opinion.

*1057 Elaine Mittleman, Washington, D.C., appointed by the court, for appellant.
Maria Cassalia, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and
Michael W. Farrell, J. Edward Agee, and Donald Allison, Asst. U.S. Attys., Washington,
D.C., were on the brief, for appellee.
William J. Olson, Washington, D.C., filed an amicus curiae brief for The Center for
Judicial Studies and Gun Owners Foundation.
Dan M. Peterson was on the brief for the amici curiae.

Before NEBEKER, FERREN, and ROGERS, Associate Judges.

FERREN, Associate Judge:

After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361. The trial court sentenced him to one to ten years imprisonment, then suspended the sentence and placed appellant on probation for two years. Appellant also was fined $150. Appellant's sole contention is that the District of Columbia firearms statutes violate his constitutional right to "keep and bear Arms." U.S. CONST. amend. II. [FN1] In previous decisions upholding firearms statutes in the District of Columbia against constitutional challenges, we have not addressed second amendment concerns. Williams v. United *1058 States, 237 A.2d 539, 540 (D.C.1968) (court will not consider second amendment challenge raised for the first time on appeal);
Scott v. United States, 243 A.2d 54 (D.C.1968) (holding that statute is not void for
vagueness); McIntosh v. Washington, 395 A.2d 744, 754-57 (D.C.1978) (ruling against appellant who raised defenses based on due process, equal protection, vagueness, and the burdening of interstate commerce); Fesjian v. Jefferson, 399 A.2d 861 (D.C.1979) (denying equal protection and takings challenges). We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions.

We agree with numerous other courts that "the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); accord Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H.1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 (1984); Annot. 37 A.L.R.Fed. 696, 706 (1978) (citing cases). That is to say, it protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right. The second amendment says nothing that would prohibit a state (or the legislature for the District of Columbia) from restricting the use or possession of weapons in derogation of the government's own right to enroll a body of militiamen "bearing arms supplied by themselves" as in bygone days. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). In sum, "[t]he right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights the people may have depend upon local legislation...." Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943).

This is not a case where Congress, wearing a federal hat, has used the criminal law to undercut rights granted elsewhere in the District of Columbia Code by the Council of the District of Columbia or by Congress itself, acting as a local legislature. Indeed, there is no local legislation granting the right to bear unregistered firearms in the District of Columbia. To the contrary, the statutory provisions for an "enrolled militia," D.C.Code '' 39-101 through 39-105 (1981), do not refer to arms, and the provisions for organizing a "portion of the enrolled militia," id. ' 39-105, into a volunteer "National Guard of the District of Columbia," id. ' 39-106, make clear that the arms, as well as the uniforms and equipment, shall be furnished by the government, id. ' 39-201, not by the individuals themselves. Accordingly, assuming the second amendment applies to the District of Columbia, we hold it affords appellant no protection whatsoever since the congressionally approved criminal law does not interfere with any government-created right to keep and bear arms.

Appellant's reliance on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), is misplaced. In Miller, the Supreme Court held that the National Firearms Act of 1934 did not violate the second amendment:

In the absence of any evidence tending to show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

307 U.S. at 178, 59 S.Ct. at 818. We reject appellant's contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have no relationship to the militia. The Supreme Court "did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case." Warin, 530 F.2d at 106 (citing Cases, 131 F.2d at 922). Given the destructive capabilities of modern weaponry, it is inconceivable and *1059 irrational to suggest, as the logic of appellant's argument does, that Congress may only regulate weapons which have no possible relationship to the common defense today "such as a flintlock musket or a matchlock harquebus." [FN2] Id.

The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized militia, called the National Guard, to be armed by government); Miller, 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).


NEBEKER, Associate Judge, concurring:

On the assumption which we make that the second amendment applies at all to the
District of Columbia, I concur in the opinion of the court. I write separately to state my conclusion that the second amendment does not apply to the seat of national government. This amendment is to ensure "the security of a free State." State militias were essential to that end--hence, the amendment. Nothing suggests that the founders were concerned about "free territories," "free protectorates" or a "free Seat of Government of the United States." See U.S. Const. art. I, ' 8, cl. 17. Indeed clause 17 gives to Congress exclusive legislative power in all cases over such "District." It may fairly be said that a federal militia is available in such places. Therefore, whatever may be said for the second amendment and its reach within the several states, I conclude first that it does not apply to the Seat of Government of the United States.

FN1. The second amendment to the Constitution provides: "A well
regulated militia being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed."

FN2. Appellant's argument that the second amendment guarantees an
individual the right to bear only those weapons that one person can operate
does not supply a meaningful limitation. That interpretation would still put
lethal weapons such as high powered rifles, machine guns, and even some
antitank weapons beyond the scope of legislative control. See Cannon
Control, Washington Post, Dec. 19, 1986, at A20, col. 1. It is
inconceivable that the Supreme Court intended in Miller to recognize the
right of unrestricted access to such weapons.

Murdoch-owned Newspaper Poll - Live Ammunition?

Larger print emphasis is mine; it is reasonable to believe that given the leaning of the tabloid, that the poll is probably skewed right.  While a smallish sampling, that gives impetus to the notion that Cameron may not be long at 10 Downing Street, or at the very least, is under extreme pressure there.

From the Sun, in the UK:

YouGov England Riot results: Majority support for water cannons

9 out of 10 British adults say police should be able to be use water cannon on rioters and one third support use of live ammunition, according to the results of a YouGov survey.
As rioting continued for a fourth night last night, a YouGov survey for The Sun has found that there is widespread support among British adults for a range of tactics to be made available to the police:
90% think the police should be able to use water cannons in the course of dealing with the rioters.
33% say police should be able to use firearms / live ammunition.77% support using the army to help deal with the situation.
57% feel David Cameron is dealing with the situation badly.85% believe either a majority or most of those taking part in the riots will go unpunished.
YouGov’s nationally representative survey of 2,534 British adults provides a look at public opinion on the unrest, rioting and looting that has spread across England in recent days.
9 out of 10 respondents (90%) thought that the police should be able to use water cannon in the course of dealing with rioters. The potential use of other tactics also proved very popular with mounted police (84%), curfews (82%), tear gas (78%), tasers (72%) and plastic bullets (65%) all attracting support from a large majority.
In addition, a third (33%) thought police should be able to use firearms / live ammunition to deal with the riots, while over three quarters (77%) supported the involvement of the army in quelling the unrest.
Public opinion is divided over how the police have dealt with the situation up until now. While a majority (52%) felt that the police were dealing with the situation either ‘very well’ or ‘fairly well’, a sizeable minority (43%) thought they were dealing with it either ‘very badly’ or ‘fairly badly’.
Politicians fared substantially less well in the eyes of the public. Just over a quarter (28%) felt Prime Minister David Cameron was dealing with the situation well, compared to a majority (57%) who felt that he was dealing with things badly.  The results for Home Secretary Teresa May and London Mayor Boris Johnson were similarly negative, with 58% and 54% respectively thinking they were dealing with the situation badly.
In the longer term, the public were sceptical that those taking part in the unrest would be punished. More than two thirds (67%) believed that a majority of those rioting will ‘probably get away with it’ while a further 18% felt that most or all would escape punishment.
Over one in five (23%) expect the riots to last until the weekend while a similar number (21%) believes that they will continue beyond then.
Joe Twyman, Director of Political and Social Research at YouGov said: “It is clear from the data that a majority of the population feels that politicians have handled the unrest badly so far. There is also significant support for making a wide range of new tactics available to the police. However, this is clearly a rapidly changing situation and we shall continue to monitor public opinion to investigate how things develop.”
Full results for the survey are available here. All figures, unless otherwise stated are from YouGov Plc. Total sample size was 2,534 adults. The data has been weighted to be representative of the British adult population as a whole. Fieldwork was undertaken between the 8th and 9th August 2011. The survey was carried out online.

Duelling for Fun in NYC in 1909

spotted at Criminal Wisdom where so many wonderful things reside.

En 1909 à New York des gens s’amusaient à se tirer dessus dans des duels, ils étaient équipés de manteaux en cuir et de masques pour se protéger et les pistolets étaient chargés avec des balles de cire.

I'll give you a hint, "balles de cire" does not mean wax balls.

Maine Lawmaker Rep. Frederick Wintle - Picking Up the Pieces

(Wintle on right)

Gun charges against a state lawmaker might be resolved in time for him to rejoin the Legislature, his attorney said Tuesday.

That's right, that's how they do it. Raging out-of-control maniacs are often allowed to plea-bargain or even request to have their charges dropped. And the pro-gun crowd, who never tire of complaining about the lenient sentencing guidelines for criminals, applaud. At least they applaud as long as the offending gun owner can somehow claim to be one of the good guys. For them, just about anything goes, "bad rules be damned," is their expression. And if the guy goes too far, they simply cut him off and relegate him to the dark side of criminal gun owners.

I've often had a hard time distinguishing one from the other, the good guys from the bad guys. I believe there's a big gray area.

What's your opinion? Please leave a comment.

Gun Manufacturers in the Northeast

The New York Times published a fascinating article about how gun-friendly states are trying to lure gun manufacturers away from the Northeast. Interestingly, the approach is a sentimental one, gun makers would feel better surrounded by like-minded folk.

But the attempted poaching of its gun makers is not being taken lightly in Massachusetts, which is home to Smith & Wesson, the nation’s largest handgun manufacturer (founded in 1852) and the Savage Arms Company (1894), or in neighboring Connecticut, where Colt (1836), the Marlin Firearms Company (1870) and O. F. Mossberg & Sons (1919) are located.

In 2005, this small region produced 1.8 million firearms, according to the Western Massachusetts Economic Development Council, about one-third of all firearms made in the country.

Pushing back, Massachusetts has published a brochure promoting its firearms makers that traces the state’s gun culture back to 1777, when George Washington chose Springfield as the site of the country’s first arsenal.
I don't imagine these major gun manufacturers could be swayed by the argument that they'd feel more welcome in states like North Dakota or Alabama than they do in Massachusetts. These are hard-core business men if there ever were any. They lobby for lax gun laws in order to facilitate gun flow into the criminal world which they in turn replenish with new guns in a never-ending cycle of death. In every board meeting they look that aspect of their dirty business square in the eye, without blinking.

No, I don't think they're interested in "feelings."  A monetary incentive might interest them, but forget about that cultural nonsense.

That's what I think. What's your opinion? Please leave a comment.

Jon Stewart in Britain

Some of us are deprived of the Daily Show short of watching it on Channel 4.

FWM made a silly comment about censorship, but this has more to do with digital rights and distribution rights than censorship. I can watch it, but not on the Comedy Central Site. That's when the above message shows up for me.

I did catch his piece on Shitzkreig though.

A Different Take on the UK Riots

From comedy central:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
Sh*tzkrieg - Anarchy in the U.K.
Daily Show Full EpisodesPolitical Humor & Satire BlogThe Daily Show on Facebook

If this doesn't play for you, you may be able to watch it at: (Tuesday, August 9, 2011 episode)

Wednesday, August 10, 2011

Another Supreme Court Justice on the Individual Right intepretation

This time it's former Chief Justice Warren E. Burger (Chief Justice of the United States from 1969-86) on The MacNeil/Lehrer NewsHour, December 16, 1991

"[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime."

See also Parade Magazine, January 14, 1990, page 4

I think that Justice Douglas's comment I mentioned in an earlier post is more persuasive. Still, this does make the point.

And by the way, Does the Constitution only give the federal government the power to organize, arm, and discipline the militia when it has been federal

Does the Constitution only give the federal government the power to organize, arm, and discipline the militia when it has been federalized?

referring to Article 1, Section 8, Clause 16

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

No. The federal government always has the power to "organize, arm and discipline" the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely used this power at times when no state militias were called up by the federal government. When the state militias are called up, the federal government has additional powers over them, but this has nothing to do with the other powers.

Asked and Answered--Unorganised, Sedentary, reserve, etcetera militias explained

First off, calling your self a "Constitutional Militia" is plain off silly since Article 1, Section 8, Clause 16 of The US Constitution says Congress shall have the Power:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Got that, if you aren't organised according to Article 1, Section 8, Clause 16, you AREN'T the militia!

The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)--in other words drafted from the Unorganised militia draft pool.

The term "unorganized" did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856." - Mahon, John K, The History of the Militia and the National Guard, p. 83

Not a good situation if you were a supporter of the militia system (as opposed to a professional military).

However, the 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the "organized" militia and the "unorganized" militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with. However, only the "organized" militia would have responsibilities. These people would be volunteers, people who actually wanted to perform militia service; they gradually evolved into the National Guard. These people would have uniforms, guns, and would drill, review and encamp.

The other people were the people who did NOT want to be in the militia. Accordingly, members of the "unorganized" militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities. All that would remain was the nominal authority of the state over them for military manpower purposes. This group of people had no militia responsibilities at all (in some areas they had to register, like for the draft today). In this way states could flaunt the spirit of the 1792 Uniform Militia Act, while nominally keeping to the letter of it.

The term "unorganized militia" was kept in use in subsequent decades as a statutory "reminder" that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the "unorganized militia," the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

Joseph Story noted the dislike for militia discipline in his 1833 Commentaries on the Constitution (3:§ 1890)

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

REPEAT TO REINFORCE THE MESSAGE: a category was created to keep the letter of the law, but not its spirit--The Unorganised, Sedentary, reserve, etcetera militia.

So, being in the "unorganized militia" conveys to you no rights, only the possibility of responsibilities. All it means is that you belong to that class of the militia which has no responsibilities. Being in the unorganized militia allows you to do not a single thing, because only the state and federal governments can create (working together) active militia systems. To date, their interest in doing so has largely concentrated on the National Guard.

Again, let me emphasize that there is not a single right guaranteed to you by virtue of your being in the unorganized militia.

The militia system intended by the framers is utterly defunct nowadays, the Pseudo Second Amendment "militia" advocates have seized upon the phrase "unorganized militia" in the US regulations. The subtle rhetoric trick here is to claim the "unorganized militia", (a term simply meaning eligible citizens) is the same as the "organized militia" (a term meaning amateur army) - EXCEPT when it comes to any State and Federal controls. They thus try to have it both ways, all the good things about the term (military connotations), without any of the restraints implied (government authority). However, it's very much an invention without any basis in fact. They just hope no-one in the audience knows enough history to call them on it, and they're often right.

But the propaganda here has it exactly backwards. The whole "unorganized militia" aspect was a much later legislative maneuver for people to GET OUT of the real (i.e. "organized") militia, akin to say getting out of the draft by being shuffled into a "reserve draft" category. It was for people to escape the conscription-like service requirements, not a license for private paramilitary groups. The structural details of the militia system were concerned with the extremely difficult task of funding and running an effective military without having a large standing army, and had nothing to do with individual gun rights. "Unorganized militia" in modern terms was more a draft-dodging loophole, not a Rambo clause.

It's something like if during the Vietnam War, people could get out of the draft by merely going into the "unorganized draft", which was supposed to come forth if the US was invaded by Vietnam. Formally, if you read that many decades later, you might naively think it actually implied some military service, whereas knowing the historical background gives it a very different aspect.

This whole "unorganized militia" banner is a bit like people calling themselves "draft dodgers", and then claiming veteran's preference because they've been part of a "dodged draft". The word simply means the opposite of what they think it means.

The whole point of creating an unorganized militia was so that the majority of citizens would have no militia responsibilities at all. This is not a big secret that I somehow uncovered; it has been well known among military historians for ages.

For a good reference see: MILITIA - HISTORY AND LAW FAQ

Some standard works on the militia and the American military are:

Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
Mahon, John K, The History of the Militia and the National Guard
Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of American: Revised Edition
Riker, William H, Soldiers of the States

One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).

See also Adam Smith's Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.

Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).