Tag: law

Saul Cornell, AGAIN

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or: “A Fisker’s Work is Never Done”

As I said in my previous piece, the gun control partisans are coming unglued. Next exhibit: Professor Saul Cornell, associate professor of history at Ohio State University, Director of the (Joyce Foundation-funded) Second Amendment Research Center of the John Glenn Institute at Ohio State, and a man with a very jabberwocky view on history, legal precedent, and the right to arms.

His latest: another op-ed, this time on the Parker v D.C. decision from last week. Yes, friends, it’s all a plot by the Vast Gunny Conspiracy.

Again, let us fisk:

Parker v. District of Columbia: Opening Volley or Just A Flash in the Pan?

Guest Blogger

Saul Cornell
Department of History,
Ohio State University

Note that he doesn’t point out his directorship of the “Second Amendment Research Center” here. He’s just a humble member of Ohio State’s History department. One would think for maximum “expert status” he’d be resting on those laurels. Perhaps Joyce Foundation funding is becoming radioactive?

The recent decision in Parker v. District of Columbia striking down the District of Columbia’s gun control law rests on a combination of bad law and even worse history. It also demonstrates the methodological weakness of originalism in its current form.

And Professor Cornell is going to cite us chapter and verse in refutation?

It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion. The interpretation of U.S. v. Miller offered by the Appeals Court rests on a revisionist reading of the case manufactured by gun rights scholars.

Manufactured and revisionist in his “expert” opinion. Yet those gun rights scholars apparently managed to convince the foremost expert on American constitutional law, Laurence Tribe – professor of Law at Harvard, and author of the most widely used ConLaw textbook in law schools today, American Constitutional Law (3rd Edition.) In the first and second editions, Tribe relegated the 2nd Amendment to mere footnotes, but in the 3rd Edition (2000) he devotes several pages to it, concluding:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

This goes well beyond what the DC Appeals court found in Parker, but we’re supposed to take Cornell’s word – an historian – that these “gun rights scholars” have “manufactured” their case, not convincingly researched it and provided it for peer-review like any other legitimate scholars.

According to the revisionist reading of Miller, the Court only cared about the type of weapon at issue in the case. This reading casts aside more than seventy years of jurisprudence and is absurd.

Absurd? Then why doesn’t Professor Cornell quote the pertinent part of the decision to prove his point? I quoted it below, I’ll be more than happy to do it again:

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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Note that the court does not do what the 9th Circuit Court of Appeals subsequently does; it does not read this as meaning that no one not a member of the militia has any right to arms. The government’s lawyers argued that position, but the Supreme Court did not decide the case on those grounds. They decided the case on the suitability of Miller’s shotgun as militia equipment. Period. They ajudicated on the type of weapon – however much Professor Cornell wishes to deny it. And a question: What amendment passed seventy years ago that overturned the understanding of the Second Amendment in Supreme Court jurisprudence up to that time?

All of the contemporary reports of Miller in the press and legal scholarship of the day treated the case as though it simply restated the overwhelmingly scholarly and legal consensus of the day that the Second Amendment was about the militia. If there was any reason to doubt this reading, then one need only look at the New York Times the day the case was reported. Judge McReynolds prefaced the decision by noting that “We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia.” Clearly, the revisionist reading of Miller has no historical foundation.

Note what Justice McReynolds did not say: “We construe the amendment as having relation to the military service, and since Miller was not a member of any military organization, he had no right to possess a firearm.” “No historical foundation”? My muscular buttocks.

The use of Founding era sources in Parker is no less problematic. One of the issues discussed by the Court is the meaning of the phrase “keep and bear arms.” To support the dubious proposition that this phrase was typically used to describe both military and non-military uses of firearms, the Court turned to the Pennsylvania Anti-Federalist Dissent of the Minority. It is a remarkable version of originalism that would use a hastily drafted protest that was never copied by any other state nor emulated by any major writer during ratification as the basis for reconstructing the meaning of an important constitutional text. Indeed, the Dissenters were so far out of step with thinking within their own state that none of them won election to the First Congress that actually drafted the Bill of Rights. Indeed, the Dissent of the Minority was invoked and dismissed during the debate over the Bill of Rights as a text that symbolized the most radical Anti-Federalist demands. Madison did not even include it among various proposals he collected when he began formulating his own list of possible amendments. Yet, despite the overwhelmingly historical evidence that this text was not typical, nor ultimately influential, gun rights scholars and their allies on the DC Court of Appeals insist on using this text as though it were dispositive of the meaning of the Second Amendment. Rewriting the Second Amendment as if it were written by the Pennsylvania Minority take originalism in the direction of an alternate history science fiction fantasy.

Uh, Professor? You just completely blew off the entire discussion in Parker over who “the people” are in favor of dissing the court’s understanding of “keep and bear arms.” They show, with vigor, that “the people” in the Second Amendment are the same “people” in the First, Ninth, and Tenth Amendments. Not a collective. Individuals. And why is it that anti-gun scholars seem unable to understand the concept of the word “keep”? Even if the Second Amendment was specifically intended only for the purpose of having an armed “well-regulated militia,” what part of this portion of Miller don’t they understand?

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

(My emphasis.) In order to bear arms “supplied by themselves and of the kind in common use at the time,” wouldn’t that mean that they had to keep them, at home, like the Swiss do today?

Who is it proposing “alternate history science fiction fantasy” here?

The Parker decision contains other historical errors that have been frequently repeated in gun rights scholarship. The Court falsely asserted there are no 19th century constitutional commentaries who favored the militia based reading of the Second Amendment. This would have shocked Joseph Story, the most influential commentator of the pre-Civil War era and Benjamin Oliver, one of the most influential popular constitutional writers of the antebellum era.

Stop right there. Let’s discuss Joseph Story for a moment. Here’s what Supreme Court Justice Joseph Story said in his 1833 Commentaries on the Constitution of the United States that’s been quoted so often:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Here’s the entire quote in full context:

The next amendment is: “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.”

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

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.

Here Professor Cornell seems to argue that Story’s fear – an indifferent population avoiding its duty – means that the government has the power to pass laws disarming them.

Somehow I don’t think Justice Story would have gone along with that idea. Even if the populace does not subject itself to militia service, it is not a militia, according to Story, but citizens – that is, individuals – with a right to keep and bear arms that provides a check against “the usurpation and arbitrary power of rulers” which is “the palladium of liberty.”

Now, as to Benjamin Oliver, I’ve only been able to find one citation of any significant length to his take on the right to arms from his book The Rights of an American Citizen: with a Commentary on State Rights, and on the Constitution and Policy of the United States. (American Book Exchange has one copy at $275. I don’t think I’ll be adding that tome to my library any time soon.) That source is Michael Bellisiles, so you’ll forgive me if I suspect cherry picking on the part of that author, given his proven history of “selective quoting.” However, this is what Bellesiles says Oliver wrote:

As the early American political scholar Benjamin Oliver wrote in 1832, the “cowardly and disgraceful” act of carrying concealed weapons transformed what might have been a barroom brawl into a deadly encounter. The Second Amendment, which Oliver held relevant only to the militia system, offered nothing “to prevent congress or the legislatures of the different states from enacting laws to prevent citizens from always going armed.”

Bellesiles then insists that legislatures of the time were in full agreement with Oliver, passing laws against carrying weapons. Well, no. Against carrying concealed weapons. Carrying openly seems to have been accepted practice. And today states are allowed to pass laws regulating the carrying of concealed weapons. A few, like Arizona and Virginia, do not restrict (at least not by statute) the open carry of firearms to this day.

Oliver might have thought that it should be OK to restrict all carry, but the legislatures and courts of the time certainly did not.

Continuing:

It also would have shocked influential post Civil War commentators such as John Forrest Dillion(sic) and Joel Prentiss Bishop.

Then I’d appreciate some citations from them to that effect, with links. This is argumentum ad verecundiam – appeal to authority. Hey, I can throw names around too! How about Chief Justice Roger B. Taney and the six Supreme Court Justices that joined him in his Dred Scott decision of 1856? (At least I give a cite.)

One could go on for pages documenting the historical errors, logical missteps, and ideological distortions of the opinion in Parker.

Then I suggest you do so, because your side is going to need to flood the court with amicus briefs for the appeal.

It is too early to tell if this case will end up being reversed. If it does then Parker will have been little more than a flash in the pan. If the case is upheld than(sic) history will view Parker as the first volley in a full frontal assault on modern gun regulation.

Right. Modern gun regulation? Again I ask: What amendment got passed seventy years ago that rendered the Second Amendment null and void?

What is indisputable is that the Court’s analysis of history and precedent was driven by an activist ideology, not a genuine understanding of the original meaning of this provision of the Constitution.

That’s the topsy-turvey jabberwocky world of Saul Cornell. An attempt to perform a strict-scrutiny original-meaning analysis on the Second Amendment doesn’t find what he wants it to find, so it’s driven by “activist ideology,” but seventy years of bad precedent built upon a foundation of racism isn’t.

Sometimes I wish someone had the power to revive the Founders just so they could bitch-slap these people.

Up next: Erwin Chemerinsky’s WaPo piece A Well-Regulated Right to Bear Arms. But tomorrow. These things are too time-consuming.

Working Hard to Deliberately Mislead

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Robert J. Spitzer, Distinguished Service Professor of Political Science at SUNY Cortland, has authored an op-ed on the History News Network website. Entitled Working Hard to Misconstrue the Second Amendment, it’s just one more example of the deliberate mendacity (that means “blatant lying,” but in polite language) practiced by gun-ban-control activists. These people present themselves as “experts” that we’re supposed to believe because they’re experts. They provide citations we’re supposed to take at face value supporting their positions, and not question whether they might be misleading us to further their own ends.

And most people would not question – or at least, they used to.

Then “fisking” came along.

Let us fisk.

In a startling case that may single-handedly revive interest in the Second Amendment’s “right to bear arms,” the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 Friday that a D.C. law barring residents from keeping handguns in their homes violated citizens’ Second Amendment right to have guns, aside and apart from service in a militia. In carving out an “individual” right, the case of Parker v. District of Columbia proves that bad history makes for bad law.

Let’s see: “carving out an ‘individual’ right” – scare quotes around “individual.” And blaming “bad history” for the decision. Right. Moving on…

In its 58 page ruling, the two-member Parker majority contradicts nearly fifty other federal court rulings spanning seven decades, as well as four Supreme Court rulings, all of which support the straightforward proposition that the right to bear arms exists only in connection with citizen militia service.

Yes, there are seven decades of court rulings doing exactly what Spitzer says, but what amendment overturned the Second seventy years ago? I wasn’t aware of of one. So, if you actually study the history, what would you find? Spitzer doesn’t tell us.

For all of the dissembling by gun rights advocates, the amendment’s full wording is pretty clear: “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.”

Dissemble: “to give a false or misleading appearance to; conceal the truth or real nature of.” Pot? Meet kettle – as I am about to demonstrate in spades.

As Supreme Court Chief Justice Warren Burger once noted, the amendment “must be read as though the word ‘because’ was the opening word.”

And where did Chief Justice Berger say this? In an article he wrote for Parade magazine – that tabloid that gets put in your Sunday newspaper, four years after he retired from the bench. Here’s the entire quote in context:

We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee. Today, of course, the “state militia” serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns — rifles, shotguns and even machine pistols — with all firearms, including what are now called “Saturday night specials.” There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to “concealed weapons” are common.

Burger here seems to be saying that “sporting arms” – weapons not particularly suited for militia service – are protected by the Second Amendment, but somehow handguns, especially cheap “Saturday night specials” are not. But the Parker decision was specifically about keeping a loaded firearm in ones own home – a condition flatly illegal in Washington, D.C. What does Burger have to say about that?

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing — or to own automobiles. To “keep and bear arms” for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago

(Emphasis mine.) Now, I’ve read the Constitution thoroughly. Where other than the Second Amendment would you get the idea that it protects “the right of hunters to own and keep sporting guns for hunting game”? Even though the Second Amendment says not word one about hunting or sporting use?

Odd that Professor Spitzer left that out, isn’t it? Let’s continue:

Alone among federal rulings siding with the Parker majority is a 2001 case from the Fifth Circuit, U.S. v. Emerson, when for the first time a federal court embraced the “individualist” view.

Correct again. And how did they do it? By studying the actual history of the Second Amendment. I’ve read the decision. Most of Professor Spitzer’s audience has not.

Yet even this case offered little meat to supporters of the individualist view, since the Emerson court upheld Timothy Joe Emerson’s prosecution for violating a federal gun law (he was later convicted).

What did the decision actually say?

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise.

and

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant’s Second Amendment rights. Accordingly, we reverse the district court’s dismissal of the indictment on Second Amendment grounds.

We remand the cause for further proceedings not inconsistent herewith.

The Fifth Circuit examined Emerson’s claim to a violation of his Second Amendment protection of his right to arms, studied the history of the Second Amendment, concluded that the right was an individual one, but – like every other individual right – subject to “limited, narrowly tailored specific exceptions or restrictions for particular cases,” and that Emerson had received due process “albeit likely minimally so,” so that his right had not been violated.

It was a pretty good decision, though the court (probably wisely) stayed far away from trying to define the exact scope of the Second Amendment.

Continuing:

Until Parker, Emerson had been ignored not only by the other circuits, but even by other Fifth Circuit courts.

Not so! The Ninth Circuit majority in Silveira v. Lockyer had some pretty harsh things to say about it, and it’s been mentioned in more than one of the dissents in that court both in Silveira and Nordyke v. King.

While accepting a militia basis for the Second Amendment, the Parker court concluded that the amendment also “protects an individual right to keep and bear arms . . . for such activities as hunting and self-defense,”

A position also taken by Chief Justice Warren Burger, no? Isn’t he an authority anymore?

with the latter encompassing “either private lawlessness or the depredations of a tyrannical government.” Parker‘s linchpin for this sweeping conclusion is its assertion that the reference to “the people” when read “intratextually” (that is, assuming it has the same meaning throughout the document) “leads us to conclude that the right in question is individual.”

Right. Since “the people” who have the right to assemble, petition for redress of grievances, have a protection against unreasonable search and seizure, etc, are, you know, individuals, but “the people” who have the right to keep and bear arms are states. It’s blindingly obvious.

If you’re a mendacious putz.

Since Americans had a “pre-existing right” to protect themselves and hunt, these activities must also have come under the umbrella for the Second Amendment, they assert. The problem with this assertion, aside from the fact that the Bill of Rights was the product of many hands, is that no evidence supports it.

Oh really? Stay tuned.

All of the debate in the First Congress concerning the right to bear arms dealt with military matters. Worse, Parker‘s claim conflates very different rights.

Individual self-defense was protected for centuries under the common law, just as modern criminal law recognizes legitimate personal self-defense. It had and has nothing whatever to do with the Second Amendment.

Except that the Second Amendment protects the instruments necessary to effect ones self-defense.

And the invocations of an armed citizenry struggling to overthrow a tyrannical government arose from natural rights, not from the Constitution or the Bill of Rights. When Americans fought to end British rule, they were not only fighting against the British, but for their own, indigenous American government. Once that struggle was won, Americans traded violent overthrow for peaceful change – through the ballot box, the jury box, and the petitioning of their new government for the redress of grievances.

Did we surrender our natural rights when we formed the United States? This is Professor Saul Cornell‘s rather interesting position. I don’t think so.

Professor Spitzer deliberately leaves out the box we’re both using – the soap box – and the last box on which our liberty stands: the cartridge box. The doomsday provision, as 9th Circuit judge Alex Kozinski put it, “one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees.”

What, that can’t happen here?

The notion that the Second Amendment somehow enshrines a right of revolution for Americans contradicts the very idea of peaceful governance. In fact, as the Constitution says, militias are to be used to “suppress insurrections,” not cause them. And the only attempt to include hunting in the federal Bill of Rights, arising from Pennsylvania, was defeated.

Well, at least Thomas Jefferson thought we should have a periodic rebellion just to keep our civil masters on their toes. Remember that “blood of patriots and tyrants” quote?

But here’s where the real mendacity comes to the fore:

More bothersome in this federal court ruling is its failure to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about.

Really? As Clayton Cramer notes in a comment to Professor Spitzer’s op-ed:

Cruikshank? The Supreme Court was looking for a way to end prosecution of Klansmen who had disarmed dozens of freedmen. (It was a lot easier to disarm the freedmen after murdering them.) Cruikshank not only found that the Second Amendment didn’t apply in this situation, but similarly with respect to the right to peaceably assemble.

Right. Another one of those rights of the state.

Oh, wait…

Clayton doesn’t quote the decision there, but I will:

The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

(Emphasis mine.) Keep this wording in mind. That sounds remarkably like a “pre-existing right,” doesn’t it? The court just narrowly said that the Federal government couldn’t violate your (pre-existing) right to arms, but there was no protection against the state doing it.

All to legally justify the disarmament (and subsequent murder) of newly freed blacks. What a stellar decision to depend on.

More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government.

On this, Clayton responds:

Presser? The Illinois government was using the National Guard to terrorize unionists, and they responded by forming their own military organization. What was prohibited was an armed body of men marching through the streets–the relevance to individuals being armed is pretty small. More importantly, the decision doesn’t say what Spitzer wasn’t(sic) it to say.

He then quotes the actual decision:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

This hardly jives with Professor Spitzer’s contention that the right to arms is somehow not an individual one, but one somehow of the states, does it? And what does Presser use for a precedent? Cruikshank. Parker could have quoted that line in bold to support their position, but D.C. isn’t a state, as the lone dissenter in Parker anguishes about.

Continuing:

And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

Little wonder, indeed, since they support the Parker court far better than you’d admit. Clayton, again:

Miller v. Texas? The big problem with this case is that the Supreme Court did not claim that the right in question belonged to the states; they argued that it was a limitation only the federal government:

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.

The precedent cited by the court in Miller v. Texas? Cruikshank. That’s circular reasoning on the part of Professor Spitzer, is it not?

But we’re not quite finished:

The Parker majority does devote considerable analysis to the most recent Supreme Court case on the Second Amendment, U.S. v. Miller (1939). Here again, the court labors to reformulate the meaning of a case that is perfectly clear.

Yes, it is. But I see it perfectly clearly in an entirely different way than Professor Spitzer does, and there are a whole lot of us (including the majority in Parker) who see it the same way.

As Judge Karen Henderson noted in her dissent in Parker, Miller declares that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual states.” Indeed, the Miller court stated flatly that the Second Amendment must be interpreted by its “obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias] the declaration and guarantee of the Second Amendment were made.”

The Parker majority view, however, asserts that Miller protects only a “weapons-based” right focusing “only on what arms are protected by the Second Amendment,” because the Supreme Court upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no “reasonable relationship” to a militia. Parker‘s twisted logic is that the Second Amendment is about protecting weapons ownership if the weapon has military utility, from assault rifles and bazookas to tactical nuclear weapons. The absurdity of Parker‘s argument underscores its desperation to achieve its real goal: to overturn the Supreme Court’s Miller decision.

I’ve read Parker. I’ve read Miller. I’ve read so damned much caselaw I ought to have a JD diploma on my wall. The Supreme Court didn’t “uphold Miller’s conviction,” it reversed the lower court’s quashing of the indictment and remanded the case for trial. Miller was never convicted because he never appeared before a court again. His co-defendant Layton plead guilty. (Thanks for reminding me to mention that, Bob.)

The court in Miller heard the goverment’s argument that Miller was not a member of a militia and therefore had no right to any firearm, and declined to decide the case on those grounds. If they had, we wouldn’t be having this discussion. Instead they ruled on the narrow question of his weapon. The decision says this:

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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

(Emphasis mine.) Note two things: First, no defense was presented in Miller’s behalf, else it could have been demonstrated to the court that short-barrelled shotguns had a long history of military service. Nobody filed a brief on Miller’s behalf, no one stood in front of the court to plead his case. Second, the wording of that paragraph seems to me, and a lot of other people, to emphatically imply that had there been any evidence the Court would have had to find in Miller’s favor. The Second Amendment would have protected not a state’s right to arm its militia, but an individual’s right to keep and bear such a weapon.

Tactical nukes? Who’s twisting what, here?

Concluding:

Parker‘s bald judicial overreach abuses history and law to achieve a partisan political end – to paste into the Constitution a personal right to own guns. Its effort is an affront to the militia tradition, constitutional history, settled court precedent, and common sense.

Right. Seventy years of gun control history shows that the right to arms was first stripped from newly freed blacks, then others “not like us,” and now, finally, everybody; and it’s been done one slow step at a time by judicial overreach and abuse of history and law, ripping from the Constitution a personal right to own guns one thread at a time.

Parker just slapped a patch on the wound, and the gun control partisans are coming unglued.

UPDATE: Paul Helmke, master of mendacity for the Brady Center, has another perfect example of the deliberately misleading op-ed over at the Brady Blog. His commenters do a thorough job of pointing out his errors, though.

I wonder how much longer that outlet is going to allow comments? Some of them are scathingly funny.

ANOTHER UPDATE:

I just saw this. Apparently professor Spitzer reviewed Clayton Cramer’s new book Armed America (order your copy today!). Clayton comments:

I’ll be charitable and assume that Spitzer is working off a Brady Campaign summary of the 19th century Supreme Court precedents that he mentions, because if he actually had read them, it would be obvious that he’s suffering creeping Bellesilesism.

In other words, “practicing deliberate mendacity.”

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Light a Seegar, it’s the Best Birthday Present EVER!.

Mrs. Baker’s little boy was born 45 years ago this day, and today the U.S. Court of Appeals for the District of Columbia gave me the best birthday present a gun-nut could ever want: A decision overturning D.C.’s draconian gun-ban on the grounds that the Second Amendment to the Constitution protects an individual right to arms.

If you’ve not been following the case, this has been in the pipeline for a while. The D.C. court was the ideal place to bring up such a suit because the District is not legally a “state.” Its statutes are subject only to federal law. Because of the precedent of U.S. v. Cruikshank the Second Amendment has been excluded from “incorporation” under the 14th Amendment’s “privileges or immunities” and/or “equal protection” clauses. State and local restrictions on the right to arms are legal (thus Chicago and Morton Grove, IL can ban handguns while Kennesaw, GA can mandate firearm ownership). While many courts have thrown out Second Amendment challenges on the “collective rights” arguments, all they’ve needed to do is cite Cruikshank – but Cruikshank, like Dred Scott before it, is a racist decision.

At any rate, Washington, D.C. doesn’t get that protection. It’s under federal law only, and the Second Amendment definitely applies.

Bear with me here. I’ve read enough legal decisions to make my eyes bleed over the last ten or twelve years. As a result, I assume other people have the same knowledge I’ve acquired, or conversely, don’t know a damned thing about what I’m discussing. Either I give too much background information, or not enough. I prefer to err on the side of “too much.”

In 1976 the City of Washington, D.C. passed three ordinances that had the following effects:

1: No new handguns could be added to the existing registry except for handguns belonging to retired police officers – essentially a ban on any new (legally possessed) handguns in the District.

2: No handgun could be carried without a permit – thus preventing even mere possession in ones own home.

3: All firearms – long guns included – had to be kept unloaded and either disassembled or with a trigger or other locking device installed, thus rendering any firearm kept legally from being available for self defense.

(And in the period since, D.C. has often been “murder capital of the U.S.” for cities over 500,000 population – trading off fairly regularly with that other gun-control bastion, Chicago.)

Two very similar cases were brought before the D.C. District Court in 2003. Seegars v. Ashcroft was brought by the NRA on behalf of several plaintiffs arguing that the D.C. ban on registering new handguns was a violation of the Second Amendment. At about the same time the Cato Institute, a libertarian think-tank, filed Parker v D.C. on essentially the same grounds. In both cases all the plaintiffs were asking for was the right to keep a loaded firearm in their own homes. There was much wrangling, and the NRA attempted to get both cases tried simultaneously, but the Cato lawyers fought that battle successfully and kept them separate.

The National Rifle Association drew a lot of flak at the time (even from me) because they argued in front of the court that they were OK with registration. At any rate, Seegars lost in the District court and when it proceeded to the Appeals court that suit was dismissed on a very narrow reading of an earlier case where the panel concluded that the plaintiffs didn’t have standing to sue because they hadn’t actually been arrested and prosecuted for trying to register a firearm! To top it all off, during this period some granstanding Senators tried to render the whole point moot by overturning the D.C. gun ban by act of Congress. That failed too.

So, with Seegars a lost cause, many of us (me among them) figured Parker was headed for the scrap heap as well. The District Court found against Parker and the other plaintiffs because it (like most courts) believed the Second Amendment does not protect an individual right to arms. CATO then appealed to the D.C. Circuit Court of Appeals – and the appeal was granted. It seems one of the Parker plaintiffs actually tried to register a handgun – and was rejected. That was sufficient “damage” in the eyes of the Court. (I’ll be quoting from the decision a lot in a later post.)

Today in a 2-1 decision (District cases are heard by a single judge, Appeals court cases are heard by a three-judge panel) the Appeals court found that the Second Amendment protects an individual right to arms, and that the rights of the plaintiffs had been unconstitutionally violated by the D.C. gun ban.

This was immediately denounced as “judicial activism at its worst” by the Brady Bunch. I’ll have more to say on that topic later, too.

So where do we go from here? Well, most probably the District of Columbia will file for a Stay to prevent the decision from vacating the D.C. gun ban (don’t rush out and buy a handgun yet, you denizens of D.C!) Then it will file an appeal for an en banc rehearing of the case. If granted, all (or at least most) of the judges on the D.C. Circuit will hear the case, and we’ll get to see how many of them are honest and how many (in the words of 9th Circuit judge Alex Kozinski) are willing to constitutionalize their personal preferences, burying language that is incontrovertibly there. Regardless of the outcome of such an appeal, the case will then progress to the Supreme Court.

And there’s the rub.

What happens then?

In 2001 the Fifth Circuit in U.S. v Emerson decided that the Second Amendment did indeed protect an individual right to arms, but that the right was not immune to “limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” It decided that the defendant’s individual right to arms had not been violated because he had received due process of law “albeit likely minimally so”. In December of 2002 the Ninth Circuit Court of Appeals in Silveira v Lockyer decided that the plaintiffs had no standing to sue because there was no individual right to arms, based on their previous Hickman v Block decision. (Note to the Ninth Circuit: I live in Arizona, one of the states you preside over. And I know what the Second Amendment says, even if you do not.)

So we had two Circuit Courts of Appeals with recent cases having opposite holdings on whether the right to arms was individual or collective.

The Supreme Court passed on both appeals. Dr. Emerson remained in jail, Californians don’t get any new “assault weapons” as defined by whoever is in charge of the California Dept. of Justice this week. And the question of whether or not the Second Amendment protects an individual right remains unanswered by our highest court.

Will they hear it? If they hear it, how will they decide? Will they finally “incorporate” the Second Amendment against infringement by the states?

In other words, will the Supreme Court overturn 72+ years of bad law at one stroke?

Think on that question and see if you can sleep soundly tonight.

I’ll have more to say on today’s decision later. I need to read it again and think a bit.

Dred Scott and Legislating from the Bench.

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The Legal Times blog notes that today is the 150th anniversary of the most-highly-reviled Dred Scott decision – the “match that ignited the civil war.” I left a comment there, which I immediately regretted – to wit:

Chief Justice Taney reached a deplorable conclusion, but he did it based on a flawless understanding of the law as it stood, and of the meaning and intent of the Bill of Rights. The Justice wrote that blacks – free or slave – could not be citizens because:

“For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

He was right – they would. Faced with decades of precedent, regardless of his personal opinion (and that of six other Justices) he didn’t have a lot of choice (though he far overstepped what was legally necessary.)

But upon passage of the 13th and 14th Amendments after a bloody war over just who was and wasn’t a citizen, the Supreme Court saw to it that those privileges and immunities remained restricted from blacks, and later, anyone else the majority felt necessary.

Say what you will about the decision, Chief Justice Taney declined to “legislate from the Bench” in 1857. Chief Justice Waite in 1875 took it upon himself to do that in U.S. v Cruikshank.

(Added emphasis – the LTB doesn’t allow HTML).

That’s what I wrote, but it is not precisely the case. Taney did indeed “legislate from the bench” – just not in a direction modern America would support, nor many of his contemporaries. As I did manage to note, the Chief Justice far overstepped what was legally necessary – or justifiable. And I should have noted that excess more explicitly in my comment. Mea culpa.

Taney was a product of his era, and, I believe it has been well proven, a great supporter of the institution of slavery at least in the latter part of his life. Given this, his decision was not surprising. But the point of my comment wasn’t that Taney went too far – that’s a given – it was that the main portion of the decision, the conclusion that blacks could not be given the “privileges and immunities of citizens,” was pre-ordained by stare decisis. That to find any other way on that point would also have been to “legislate from the bench.”

And here I’d like to argue once again that this is the purpose of having a Supreme Court. As I noted in Game Over, Man. Game Over, our legal system is constrained by the philosophy of stare decisis. As Mike from the now apparently defunct Feces Flinging Monkey put it:

(T)he future of our freedom ultimately rests with the court’s willingness to periodically reexamine the law. Lawmakers, and law enforcers, will always push the limits, and they will always win occasional gains. If the court is unwilling to revisit these issues over time and correct the damage done, then it’s “game over” no matter what we do. This makes it a little easier for me to accept changes in the law where the cost is low and the benefits are significant. If I can’t count on an occasional review, then the game is already lost.

But we hardly ever get that review – “periodic” or otherwise. In my piece But it has to be a heap, now, I quoted Webster’s definition of stare decisis:

(A) doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice

And I quoted extensively from Julian Fisher’s Reason Online essay A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion. Sanchez makes essentially the same argument:

There’s a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don’t constitute a “heap” of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn’t a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you’re pushed to the equally absurd conclusion that 100,000 grains aren’t a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It’s not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like “interstate commerce,” “public use,” “unreasonable search,” and “cruel and unusual” are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court’s interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an “attitude altering slippery slope.” Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough—the differences from case to case sufficiently subtle—plausible distinctions become harder to find.

Sanchez concludes his piece:

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they’re engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That’s not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed, it’s a sign that jurists need to be willing to step back and see the heap.

I concluded Game Over, Man thus:

Mike Spenis said “the future of our freedom ultimately rests with the court’s willingness to periodically reexamine the law,” but the evidence is plain that the courts will not do that. They will use obviously flawed precedent so long as it “comports especially well with our notions of good social policy.” And even if it doesn’t, the courts will often bow, as Kozinski does here, to precedent they abhor. We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are “willing to bury language that is incontrovertibly there.” The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as “men of zeal, well-meaning but without understanding” “build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text.” And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.

So “legislating from the bench” has its place, but what is that place?

Sanchez says it’s “when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed.” Mike says it’s when enough damage has been done by the forces that constantly push the limits of what’s legal. In other words, it’s a judgement call. Like it or not, that power has been placed in the hands of nine un-elected judges.

No one (today) objects to the Supreme Court’s Brown v. Board of Education decision overturning decades of “separate but equal” precedent, but that was clearly “legislating from the bench.” Great howls of outrage and peals of glee resulted from Roe v. Wade, but that too was “legislating from the bench” as defined as violating stare decisis.

So when is “legislating from the bench” valid, and when not?

I would argue that two conditions must be met. First, it can and should only be done by the Supreme Court. To bestow that power on lower courts invites, if not anarchy, then disrespect for law by the citizenry. Second, any decision that violates stare decisis must be done in order to broaden individual rights and freedoms – the “privileges and immunities” of citizens – that have been improperly restricted by decades of grain-upon-grain infringement.

Someone has to have the power to say “That’s a heap,” and knock it down.

In Dred Scott the court was in a position to say that nearly a hundred years of law was wrong, because it denied “the privileges and immunities” of citizens to free blacks, but it did not. Instead the decision (like slavery itself) “contravene(d) the ordinary principles of justice.” Brown v Board of Education restored some of those principles. Roe established a set of rules that I think straddled the dichotomy between the rights of women and the rights of the fetus, but the Doe v Bolton decision – handed down at the same time and almost never mentioned – destroyed those rules, and contravened the principles of justice.

The problem is, this method is messy. Stare decisis is neat and simple. Good decisions do get made, but even good decisions can have bad unintended consequences. It’s a positive feedback loop in which a little garbage in creates ever greater garbage out. There is no established mechanism for “periodically reexamining the law,” and that is a major flaw in the system.

Dred Scott was an understandable decision given the era and the then “shared public understanding” – but the end result was war. Had the Supreme Court of that time been made up of radicals and overturned slavery that decision would have almost definitely also resulted in war. Was there some middle ground that would have satisfied both sides? In my opinion, no. But if you are going to make a decision upon which the rights of citizens depends, I’d prefer it if the Supreme Court of the land decided in favor of expanding those rights, rather than restricting them even further. We depend on those nine un-elected judges to protect our liberty against infringement by ever-encroaching government power.

How do you think they’re doing?

Stare Decisis

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or: “Go Away, Boy, You’re Bothering Me”

Via Alphecca, Hollis Wayne Fincher has been convicted of possession of an unregistered short-barreled shotgun and two unregistered machine-guns. (Read the comments!)

This is not unexpected. In fact, I’d have been shocked had he not been. Unfortunately, Arkansas is in the 8th Circuit, not the 5th. The 5th Circuit is the one that found (unlike most of the others) that the Second Amendment does protect an individual right to arms – though one of “uncertain scope.” Instead, the 8th Circuit has U.S. v. Nelsen as precedent – a 1988 case that used U.S. v Cruikshank as precedent. Here’s the pertinent quote from Cruikshank:

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes…”(My emphasis)

Cruikshank is the 1875 Supreme Court case declaring that the Second Amendment only protects the (pre-existing) right to arms from federal infringement. If the majority of the residents of your state wanted to disarm you (because, in this case, you happened to be black), well that was no business of the Feds!

U.S. v. Nelsen cites Cruikshank for the proposition that “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.” Note that Nelson omits Cruikshank‘s additional language, changing the meaning entirely. Then Nelson was used as precedent in 1992’s U.S. v Hale, a very similar case where (if I recall correctly) the accused walked up to a police station, advised the officers present that he possessed several unregistered fully-automatic weapons and challenged them to arrest him so that he could attempt to fix – through the justice legal system – the travesty that has been building since U.S. v. Cruikshank. The BATF eventually got a warrant and went in to find that, indeed, Mr. Hale had several unregistered fully-automatic weapons. He went to trial.

He lost.

He appealed

He lost.

He appealed to the Supreme Court.

They denied certiorari.

Now Wayne Fincher has lost. And, I believe, he will continue to lose because of stare decisis,

Latin: “to stand by that which is decided.” The principal that the precedent decisions are to be followed by the courts.

To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.

It is interesting to note that in the Hale decision there was a separate concurrence by Judge Beam, to wit:

I concur in the result reached in Judge John R. Gibson’s opinion in this matter. I agree completely with the portions dealing with Hale’s hearsay and confrontation contentions. I also agree that Hale’s possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d (1st Cir.1942); United States v. Warin, 530 F.2d (6th Cir.1976); United States v. Oakes, 564 F.2d 384 (10th Cir.1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir.1988) properly interpret the Constitution or the Supreme Court’s holding in United States v. Miller, 307 U.S., 59 S.Ct. 816, 83 L.Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson’s opinion seems to adopt that premise and with that holding, I disagree. (Emphasis mine.)

Yet footnote 3 of the decision rebukes Judge Beam:

The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases. (Emphasis mine.)

In other words, it doesn’t matter. We’ve changed the law, and we’ll keep changing the law as it suits us. Cruikshank declares that Congress can’t infringe on the right to arms, but by the time we reach Hale in 1992, through stare decisis alone, Congress has that power. Because the courts say it does.

Which reminds me again of my favorite dissent ever written: Judge Alex Kozinski’s dissent to the 9th Circuit’s denial of an en banc rehearing of Silveira v Lockyer:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

And Judge Kleinfeld’s dissent in that same decision was almost as good:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit’s opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

Those quotes are just excerpts. Read the whole thing. Both Kozinski and Kleinfeld understand that stare decisis only goes so far, and that the courts of this nation have eviscerated the Second Amendment.

And there is every indication that they will continue to do so. Opinions in favor of the original meaning of the Second Amendment will continue to be dissents, and the courts will not save us.

One final excerpt from Kozinski’s dissent in Lockyer:

My excellent colleagues have forgotten (the) bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Quick! Somebody Tell the 9th Circuit!

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(And the New Jersey Superior Court)

Eugene Volokh reports that the Washington Supreme Court has declared in State v. Williams:

In the present case, we are similarly concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24. A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches.

This is an error. The overall length must be greater than 26 inches, not less. The decision gets this right in at least two other places.

See RCW 9.41.010(6). RCW 9.41.190 precludes possession of a short-barreled shotgun. Moreover, the statute also criminalizes possession of a short-barreled rifle and a machine gun. The factor concerned with innocent conduct is particularly important in the case of a machine gun, which can be altered in ways not easily observable.3 If strict liability is imposed, a person could innocently come into the possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun’s characteristics, if the barrel turns out to be shorter than allowed by law or the weapon has been altered, making it a machine gun. The legislature likely did not intend to imprison persons for such seemingly innocent conduct.

This decision did uphold Mr. Williams’ conviction for possession of a short-barreled shotgun, but contrast this wording to, for example, New Jersey’s Superior Court in State v. Pelleteri. Here are the facts of that case:

On May 30, 1990, our Legislature proscribed the “knowing” possession of “assault firearms.” N.J.S.A. 2C:39-5f. Persons legally in possession of such firearms prior to the effective date of the statute could retain these weapons by obtaining the appropriate registration. N.J.S.A. 2C:58-12. Included in the definition of “assault firearm” is “[a] semi-automatic rifle with a fixed magazine capacity exceeding [fifteen] rounds.” N.J.S.R 2C:39-1w(4). Defendant was convicted of “knowingly” having in his possession an assault firearm, a semi-automatic rifle with a magazine capacity of seventeen cartridges.
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Defendant, an expert marksman who at one point was employed as a firearms instructor, won a Marlin semi-automatic rifle in the late 1980’s by placing first in a police combat match. An avid gun collector, defendant placed the weapon in his safe. Defendant claimed that he neither inspected nor used the firearm. When the police recovered the gun from defendant’s residence in December 1993, it still had the manufacturer’s tags and the owner’s manual attached to the trigger guard. The owner’s manual indicated that the rifle could hold at least seventeen cartridges. Defendant claimed that he never read the manual. While conceding that he knew the rifle was a semi-automatic weapon, defendant contended that he was unaware that the firearm had a magazine capacity exceeding fifteen rounds.

And here’s the court’s decision:

We are concerned here with a statute dealing with gun control. “New Jersey has carefully constructed a ‘grid’ of regulations” on the subject. In re Two Seized Firearms, 127 N.J. 84, 88, 602 A.2d 728, cert. denied sub nom Sholtis v. New Jersey, 506 U.S. 823, 113 S.Ct. 75, 121 L.Ed.2d 40 (1992). This is an area in which “regulations abound and inquiries are likely,” and where the overarching purpose is to insure the public safety and protect against acts and threats of violence. State v. Hatch, 64 N.J. 179, 184, 313 A.2d 797 (1973); see also Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968). “[T]he dangers are so high and the regulations so prevalent that, on balance, the legislative branch may as a matter of sound public policy and without impairing any constitutional guarantees, declare the act itself unlawful without any further requirement of mens rea or its equivalent.” State v. Hatch, 64 N.J. at 184-85, 313 A.2d 797. When dealing with guns, the citizen acts at his peril. In short, we view the statute as a regulatory measure in the interests of the public safety, premised on the thesis that one would hardly be surprised to learn that possession of such a highly dangerous offensive weapon is proscribed absent the requisite license.

Here’s that “highly dangerous offensive weapon” that the State of New Jersey declared an “assault firearm.”:

Actually, that’s not true. The picture here is of the current Marlin Model 60 .22 rimfire semi-automatic tube-magazine rifle. The new one has been redesigned so that it can only hold fourteen of the horrificly deadly .22 rimfire rounds, thus rendering it not an “assault weapon” in the eyes of the State of New Jersey.

Then, of course, there’s the Ninth Circus, who, in Hickman v. Block declared:

The Second Amendment to the United States Constitution states: “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.” U.S. Const. amend. II. Hickman argues that the Second Amendment requires the states to regulate gun ownership and use in a “reasonable” manner. The question presented at the threshold of Hickman’s appeal is whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms. We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action.

In the later Silveira v. Lockyer case, Judge Kleinfeld wrote this in his dissent to the decision to refuse to hear the case en banc:

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”
—
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.

Washington’s Supreme Court has stated that the Second Amendment and Washington’s Constitution both protect an individual right to arms, but Washington is one of the states in the 9th Circuit. If someone attempts to appeal in FEDERAL court on the grounds that they have such a right, said claim will be rejected. Hickman v. Block settled it.

UPDATE: Ben at Carnaby Fudge has an excellent take on the search that resulted in Mr. Williams’ arrest for possession of the sawed-off. But in my case I think I’m just going to stick with telling the officer, “No, you can’t come in without a warrant.”

And I want one of these for Christmas.

I Think They Blinked…

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Here’s a news release from the Second Amendment Foundation, which is currently engaged in a lawsuit against the City of New Orleans for the illegal gun confiscations that occurred in the aftermath of Hurricane Katrina:

New Orleans Admits to SAF Attorneys They Have Seized Guns

BELLEVUE, Wash., March 15 /U.S. Newswire/ —

In a stunning reversal, the City of New Orleans revealed today to attorneys representing the Second Amendment Foundation and National Rifle Association that they do have a stockpile of firearms seized from private citizens in the wake of Hurricane Katrina.

The disclosure came as attorneys for both sides were preparing for a hearing in federal court on a motion filed earlier by SAF and NRA to hold the city in contempt. Plaintiffs’ attorneys traveled to a location within the New Orleans city limits where they viewed more than 1,000 firearms that were being stored.

“This is a very significant event,” said attorney Dan Holliday, who represents NRA and SAF in an on-going lawsuit seeking to enjoin the city from seizing privately-owned firearms.

“We’re almost in disbelief,” admitted SAF Founder Alan Gottlieb. “For months, the city has maintained it did not have any guns in its possession that had been taken from people following the hurricane. Now our attorneys have seen the proof that New Orleans was less than honest with the court.”

Under an agreement with the court, the hearing on the contempt motion has been continued for two weeks, the attorneys said. During that time, according to Holliday and fellow attorney Stephen Halbrook, the city will establish a process by which the lawful owners of those firearms can recover their guns.

“While we are stunned at this complete reversal on the city’s part,” Gottlieb said, “the important immediate issue is making sure gun owners get their property back. We’re glad that the city is going to move swiftly to make that possible, and naturally we will do whatever is necessary to make this happen.

“What happened in New Orleans after Hurricane Katrina was an outrage,” Gottlieb observed. “Equally disturbing is the fact that it apparently took a motion for contempt to force the city to admit what it had been denying for the past five months.

I wonder if they’ve got Patricia Konie’s .38? Anybody got an update on her lawsuit? Nothing on Google news.

The Big Lie

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On the way in to work this morning, the 7:30 NPR news played this quote from John “I Served in Vietnam” Kerry:

Confirming Judge Alito to a lifetime appointment on the Supreme Court would have irreversible consequences that are already defined if Senators will take the time to measure them.

In my judgment, it will take the country backwards on critical issues.

Really? Irreversible consequences?

But isn’t what Kerry (and the Left in general) is afraid of is the reversal of eighty years of leftward movement by the Court?

Hugh Hewitt interviews “The Smart Guys” – USC professor Erwin Chemerinsky from the Left, and Chapman University law professor John Eastman from the Right, weekly. On Wednesday, June 8, 2005 the topic was Janice Rogers Brown’s appointment to the DC Circuit, and this exchange was transcribed over at Radioblogger:

John Eastman: You know, I mean, it’s just so preposterous, I don’t even know where to begin. The reason Chuck Schumer is so upset about this, is Justice Brown is the kind of judge who will, you know, adhere to the Constitution. And when the members of the legislature, even the exalted Chuck Schumer hismelf, want to take actions that is not authorized by the Constitution, she’ll be willing to stand up and do her duty, and strike it down. That’s not an arrogance, that’s what the judges are there for, to adhere to the Constitution, and not to let the legislature roll over them and do whatever they want. You know, it really is preposterous. We’ve turned this upside down. The judges that do exactly what they’re supposed to do are demonized, and those that take a powder and let the legislature get away with every abuse, every extension of power imaginable, are touted at the cocktail circuit.

Erwin Chemerinsky: I think what Senator Schumer is saying, and is absolutely right, is that Janice Rogers Brown’s repeated statements that she believes that the New Deal programs like social security are unconstitutional, is truly a radical view. That’s not a judge who wants to uphold the Constitution. That’s a judge who wants to shred the last eighty years of American Constitutional law. Janice Rogers Brown saying she believes that the Bill of Rights should not apply to the states, would undo the last seventy years of Constitutional law. That’s not a judge who wants to follow the law. That’s a judge who wants to make the law in her own radical, conservative views.

John Eastman: Hang on, here, because Erwin…there’s a wonderfully subtle change in your phraseology that demonstrates what’s going on here. You said she won’t follow the Constitution, and then you said it’s because she won’t follow the last seventy or eighty years of Constitutional law. What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930’s that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can’t question that unconstitutional action that occurred in the 1930’s, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930’s was…had no basis in Constitutional law, or in the letter of the Constitution itself.

They’re not afraid of “irreversible change.” They’re afraid of reversal of their changes. And, typically, they won’t come out and say that.

The Left is Still Trying to Strictly Redefine “Judicial Activism”

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I noticed this with the Roberts confirmation hearings, but didn’t say anything about it at the time. Once again the Left attempts to redefine words to mean what they want them to mean so as to confuse the issue. Case in point, Michael Bryan of Blog for Arizona, dean4az.blogspot.com, posts on the question of just what is “judicial activism”:

Who’s the activist? The only quantifiable measure of a judges ‘activism’ is how often s/he invalidates a law duly passed by Congress.

He then gives this table indicating how “activist” each sitting member on the Supreme Court is:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

I left this comment:

That’s funny. I thought part of the “checks and balances” function of the Judicial branch was to, you know, check the power of the Legislative branch? Not merely rubber-stamp its legislation. If Congress overreaches the powers delegated to it under the Constitution, the Courts are supposed to rein it in. This is to protect the rights of the minority against the power of majorities. As Justice Scalia (56.25%) has put it, “The only reason you need a constitution is because some things you don’t want the majority to be able to change. That’s my most important function as a judge in this system. I have to tell the majority to take a hike.”

“Activism” on the court, on the other hand, is inventing law – finding things in laws already written that were never intended. As 9th Circuit Judge Alex Kozinski put it, “build(ing) magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text.” Creating law is a power reserved to the legislative branch by the Constitution.

The Courts aren’t empowered, for example, to tell the Massachusetts legislature that they must pass “gay marriage” legislation (not “civil union”), and set a deadline to do so.

Not that that stopped the Massachusetts Supreme Court.

You see, the SCoMA decided that the MA Constitution meant that “gay marriage” was required under law, even though it had never meant that before. No Massachusetts legislature had ever written a law that said that. No plurality of Massachusetts voters had ever voted on any law like that, but four of seven Justices sitting on the bench decided for everyone in Massachusetts what the law really meant, although the people who wrote and ratified that Constitution would have (I can say with some confidence) disagreed with that finding.

That is “judicial activism” – a tiny minority telling everyone else what is and isn’t right – with essentially no legal recourse but the amendment process. It renders constitutions worthless, because tiny black-robed minorities get to decide what the law means on a day-to-day basis, and can change that meaning at any time.

Sorry, Michael, but you’ve got it exactly backwards. “Invalidating laws passed by Congress” isn’t “judicial activism,” it’s the job description for the Judicial Branch.

Based on that understanding, I’d say that Thomas is the most on-the-ball Justice sitting on the Supreme Court today.

The source for Michael’s post was this New York Times piece, So, Who are the Activists? by Yale law professor Paul Gewirtz and recent Yale law graduate Chad Golder. That piece opens:

WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is “activist.” But the word “activist” is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we’ve identified one reasonably objective and quantifiable measure of a judge’s activism, and we’ve used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Note that the authors have identified this question as one way to identify “judicial activism,” but Michael has labled this test “The only quantifiable measure“. The NYT piece notes, “Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down.” But Michael characterizes “striking down laws passed by Congress” thus:

Generally, those who are touted as ‘conservative’ judges who ‘strictly apply the law’, do not such thing. They legislate from the bench by second-guessing Congress almost half the time, or more.

I would argue that the supposedly liberal members of SCOTUS – who are supposed to be protecting the rights of the individual against government tyranny (I believe that’s part of the liberal creed, but not the Leftist one) – are falling down on the job. Badly. The NYT piece continues:

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court’s decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

You’ll note the piece takes no notice of what those cases were specifically, or who voted which way on them. No, the only measure is whether or not a Justice voted to “strike down” legislation.

Kelo v. New London (private property rights), voted to uphold: Kennedy, Souter, Ginsberg, Bryer, and Stevens. Voted to strike down: O’Connor, Scalia, Rehnquist and Thomas.

Raich v. Gonzales (medical marijuana), voted to uphold: Stevens, Kennedy, Souter, Ginsburg, Breyer. Voted to strike down: O’Connor, Rehnquist, and Thomas.

McConnell v. FEC (Campaign finance reform), voted to uphold: Stevens, O’Connor, Souter, Ginsburg and Breyer. Voted to strike down: Scalia, Kennedy, Rehnquist, and Thomas.

Note which side Rehnquist and Thomas are on in all three cases. Now tell me that “judicial activism” by this definition is a bad thing.

Ted Frank at Point of Law noted on the Kelo decision:

Justice Kennedy’s concurrence creates a brand-new test: “There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” This test is so amorphous to be effectively standardless, requiring case-by-case adjudication, thus effectively transforming the judicial branch into a super-legislature with the power to veto condemnations engaged in by the executive branch—after extensive litigation over whether the favoritism is “permissible” or “impermissible,” of course. Like many other cases in the last decade, the Supreme Court’s decision vests additional political power in itself.

Big surprise. That seems to be the natural condition for all forms of government. I submit that the “test” Professor Gewirtz and Mr. Golder have concocted is perfectly useless as an indicator of much, at least by itself.

Thomas Sowell has an excellent piece up on the topic, Judicial Activism Reconsidered. He begins:

Like many catchwords, “judicial activism” has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually “void for vagueness” for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.

“Judicial activism” and “judicial restraint” raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

It would appear to me that there are at least seven objective and quantifiable tests identified right there, not just one. Read the whole piece. Professor Sowell is far better at this than I am.

UPDATE, 11/2: The comments over at Michael’s original post are kind of amusing.

“…Reason to Suspect ‘It is Drug Related’ “

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Are you going to join in the Great Wal*Mart Ammo Day Buy? Well, I said we wanted to see what happened. This might give some of us a clue. (Check the date – 11/5/2002) Reader Carl sent me this news story (link appears to be broken due to age, but the players are real – see below):

Who bought 1,000 rounds of 9 mm ammo?

Mary Jo Denton
Herald-Citizen Staff

November 05, 2002
When someone bought 1,000 rounds of 9 mm ammunition at a Cookeville store recently, clerks became suspicious.

So did police after they received information about the purchase.

The ammo appeared to be headed for use in drug related crimes, according to Capt. Nathan Honeycutt of the Cookeville Police Department.

That was last week, and investigation into the matter continues today, with one man under arrest so far, but not for having the large quantity of powerful bullets.

A thousand 9mm rounds? That’s a decent weekend for some of us.

Last Friday, federal, regional, and local officers executed a search warrant and arrested Vernon Thomas Mendoza, 25, of Buffalo Valley Road, Cookeville.

He is facing “a variety of federal charges, including possession of a handgun by a convicted felon and possession of methamphetamine for resale,” Capt. Honeycutt said.

Well good on ’em, then. But how did they know about Mr. Mendoza?

Meanwhile, the search for where the ammunition wound up continues, and detectives are hot on the trail, he said.

With the information they first received last week about the ammo purchase, police detectives set up an undercover investigation which included the federal Alcohol, Tobacco, and Firearms agency, working with the 13th District Drug Task Force, and Detective Lt. Doyle McClain and Detective Sgt. Carl Sells.

“We are still trying to find out where this much ammunition was going, and we have some very good leads now,” Capt. Honeycutt said today. “In fact, we have a pretty good idea of where it is and more arrests are pending.”

He said 9 mm ammunition of the type bought “is the most likely thing that goes into automatic weapons commonly used by criminals.”

Wait… I thought automatic weapons were strictly regulated by the 1934 National Firearms Act? And that kept them out of the hands of criminals. But now they’re “commonly used by criminals”?

Oh. You mean semi-automatic weapons. Well why didn’t you say so?

“And to buy that much at one time is very unusual, so that is why it raised the suspicions of the store and of the police,” Honeycutt said.

It might be unusual in Cookeville, but it’s pretty damned common most places. When I buy .45ACP it’s by the thousand round case. I guess these guys would have had little kittens if they’d found out about my recent purchase of 768 rounds of .30-06, in Garand clips on bandoleers, shipped in evil .50 caliber ammo cans!

While it is not necessarily illegal to possess such ammunition in that quantity, detectives working this case have reason to suspect “it is drug related,” he said.

Not necessarily illegal! How nice! I guess my cabinet full of reloaded ammo isn’t necessarily illegal either? Or all the loose projectiles, various powders, primers and empty cases?

He said the “behavior” of the buyer, as well as the quantity of the purchase figured into the suspicion raised.

I can imagine what bothered the clerks. The guy comes up and says “I need a thousand rounds of 9mm and six cases of Sudafed. And hurry up, I’ve got things to do!”

“Our detectives did not wait for somebody to get hurt, but took a proactive stance and moved to track down this ammunition,” Honeycutt said.

The arrest of Mendoza was the first result, and more arrests are expected, he said.

When the officers and DTF and ATF agents arrived at Mendoza’s residence last Friday about 11 a.m., they found him there with his girlfriend, and he was arrested without incident, Honeycutt said.

But he made no statements, Honeycutt said.

Allegedly, he had a handgun and methamphetamine, and his arrest was based on those items.

But the officers did not find the 1,000 rounds of ammunition.

“So it is still a very, very active investigation,” Honeycutt said this morning.

He praised the work of the Cookeville Police detectives and the “excellent cooperation” of the ATF and the Drug Task Force.

Mendoza was taken to Nashville, where he will be arraigned in federal court.

Published November 05, 2002 12:12 PM CST

I didn’t find any follow-ups on this story, but in checking, I did find this golden oldie:

Killing of family dog unfolds on videotape

By LEON ALLIGOOD
Staff Writer

Review finds officers acted properly in stopping car

Three minutes and seven seconds tells the story of a dog named Patton.

The dog, which was shot at close range Jan. 1 by a Cookeville policeman during a felony traffic stop, belonged to the James Smoak family of Saluda, N.C. At the time, the Tennessee Highway Patrol suspected the Smoaks — James, his wife, Pamela, and his stepson, Brandon Hayden — were involved in a Nashville-area robbery.

Yesterday, the Tennessee Highway Patrol acknowledged there was no robbery, just a calamitous mix-up in communications between dispatchers working for two separate patrol offices. This failure to communicate led to the shooting of the Smoaks’ dog, an incident that was preserved on videotape by a dashboard camera in a patrol car.

Even so, the THP officers did not act inappropriately by making the felony stop, according to an internal investigation.

“Our investigation has found that our troopers on the scene that night — Trooper David Bush, Trooper Jerry Phann and Lt. Jerry Andrews — did have probable cause to conduct what in police terms is called a ‘felony stop’ of a motorist,” said Beth Tucker Womack, spokeswoman for the Department of Safety. The THP is part of the Safety Department.

A felony stop is ordered when the occupants of a car are thought to have been involved in a crime.

Likewise, the Cookeville Police Department’s internal investigation determined that its officers, who were providing backup for the troopers, “performed their duties according to training and policy,” said department spokesman Capt. Nathan Honeycutt.

You can read the rest at the link.

I wonder how many BATF agents are going to be tied up investigating a nearly-simultaneous purchase of tens of thousands of rounds of ammunition of various calibers? Or how long it will take Wal*Mart to shut down ammo sales on Nov. 19?