Tag: law

“But it has to be a heap now.”

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Yes. That’s It Exactly

I don’t have to work at this, people send me stuff. Mike from Feces Flinging Monkey most recently has been pointing me at the most interesting things. Today’s is a piece in the current Reason Online by Julian Sanchez concerning my most personally hated latin phrase, stare decisis – defined by Webster’s as “a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.” Mr. Sanchez’s piece is entitled A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion. Mike found it through the blog A Constrained Vision, which looks interesting in itself, as the author draws it’s title from a Thomas Sowell quote. Anyway, the part(s) I found pertinent were these:

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.

—

The core of the argument in the dissent, on the other hand, looked quite different, going directly to the Fifth Amendment’s stipulation that property be seized only for “public use”:

[If] predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

The dissent in Raich was heavier on citation, but at its core seemed similarly motivated by a big-picture concern that the ruling “threatens to sweep all of productive human activity into federal regulatory reach.” Both dissents, in other words, step back from the meticulous addition of granules to exclaim: “But it has to be a heap now.”

These two decisions prompted outrage not because either was a radical departure from precedent – neither was – but because they called attention to just how many grains of precedent had been piled atop the terms “public use” and “interstate commerce,” reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.

(That’s the heart of it, but read the whole thing.) Worse, when stare decisis builds upon previous bad decisions – and no one denies that the Court has made some real stinkers over its history – then we’re not talking heaps of sand anymore. We’re talking heaps of shit.

Raich, and to a much larger extent Kelo, both “contravene the ordinary principles of justice” without a doubt. That a majority of the Court wouldn’t recognize this is what angers me more than anything. Perhaps they believe Nancy Pelosi‘s right, and their decisions are “almost as if God has spoken” so they needn’t bother themselves with “eyeballing the heap.”

Thomas, on the dissenting side in both Kelo and Raich, is absolutely right: “Something has gone seriously awry with this Court’s interpretation of the Constitution.”

And achieving divinity ain’t it.

Sprinting Towards Despotism.

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Back in February I wrote Slouching Towards Despotism on the Kelo v. New London eminent domain case. At that time I wrote:

First step down the slippery slope: “Urban renewal of blighted areas and slums” as justification.

Second step down the slippery slope: “Fair redistribution” as justification.

Third step down the slippery slope: “Boosting tax revenue” as justification.

Read the whole piece.

I’m not surprised by today’s decision. I’m not angry. But I am heartsick, and I’m not alone.

Nor is this over.

Connecticut residents involved in the lawsuit expressed dismay and pledged to keep fighting.

“It’s a little shocking to believe you can lose your home in this country,” said resident Bill Von Winkle, who said he would refuse to leave his home, even if bulldozers showed up. “I won’t be going anywhere. Not my house. This is definitely not the last word.”

When I wrote Freedom’s Just Another Word for “Nothin’ Left to Lose” last week, this was precisely what I was writing about. Bill Von Winkle now has three choices: Submit, go to jail, or die. His legal options are finished.

And still this isn’t the straw that will break the camel’s back.

But it ought to be.

UPDATE:  Due to the herculean efforts of reader John Hardin, the original JS-Kit/Echo comment thread for this post is available here.

PreCISELY!

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I was listening to Hugh Hewitt‘s radio show on the way home yesterday. On Wednesday afternoons he has “The Smart Guys” on, Erwin Chemerinsky (from the left), law professor at USC, and John Eastman (from the right), law professor at Chapman University. Well, yesterday Hugh was asking them both about their opinions of the appointment of Janice Rogers Brown. Hugh’s producer Duane Patterson runs the blog Radioblogger and has the transcript. Chemerinsky whined about how “out of the mainstream” Brown was:

I think it’s sad. I think Janice Rogers Brown is pretty much as far to the right on the political spectrum as you’re going to get for a federal Court of Appeals. She said that she believes the social security program is unconstitutional.

That’s just a set-up for what’s coming, though, because a few minutes later we got this exchange:

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.

THANK you, John Eastman for smacking down Chemerinsky when he so richly deserved it. Game, set, match.

And thanks to Duane Patterson for transcribing that spanking. (There’s quite a bit more, if you’re interested.) It made my day!

Repeating Myself

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And Others.
 

On Sunday I mentioned Ian Hamet’s post A Challenge, and I promised to have more to say on the matter. Well, I do. (Warning! Extremely long post!)

But first, Ian has confessed to unconsciously plagiarizing libertarian author J. Neil Schulman from his book Stopping Power, and I have to admit I had forgotten about it too, even though I have a PDF copy of his book on my hard drive. You can buy a copy, like I did several years ago, at www.pulpless.com for $3.95. It’s worth the download time, and more than worth the price.

As I said, I have more to say on the topic, but once again I find that I will be repeating myself. My area of interest – rights in general and the right to arms in particular – is rather narrow though very deep, so when I’m writing about it for a general audience I find that I must keep hammering at certain fundamentals and that means repetition. Hopefully after two years of this, and an apparently slowly growing readership, I’m reaching some new people and not boring the hell out of the rest. Thank you for bearing with me.

Ian’s post and Schulman’s piece weren’t written to inspire dialog on the similarities and differences between an “intelligentsia” and a “militia,” nor to argue the meaning of “well regulated.” They were both trying to illustrate that words mean things. And further, that the founding document of this nation is a legal CONTRACT. This is a point that Supreme Court Justice Antonin Scalia keeps making time and time again in his public speaking. “How,” he once asked an audience rhetorically, “do you write a moderate contract?” And if the courts can decide that the words in a contract can mean whatever they want them to mean, then the contract isn’t worth the paper it’s written on:

If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.

Absolutely right. Now bear with me again, because I’m going to quote quite a passage from a speech Justice Scalia made on March 14th of this year that makes his point explicitly:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise – not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way – they lied about it. They said the Constitution means such and such, when it never meant such and such.

It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.

It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.

Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.

That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple – the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Just to insert, the Dred Scott court listed “those liberties that are fundamental to a democratic society and rooted in the traditions of the American people” and here I repeat Chief Justice Taney’s listing of the rights that could not be conferred upon blacks, free or slave:

(Citizenship) would give to persons of the negro race, who were recognized 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.

Those liberties. In 1856 the Supreme Court wasn’t yet willing to reinterpret a “living Constitution,” so instead the Court’s members decided that excluding an entire race of people from its protections was perfectly valid. It’s only a little damage, and it’s for public safety, you know.

Scalia continues:

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

And, we see even more damage done in the name of that “Living Constitution” idea. Erosion of the First Amendment protections on political speech under McCain-Feingold. The continuing decimation of the Fourth and portions of the Fifth Amendment because of the War on (some) Drugs™, and the continuous assault on the Second Amendment under the aegis of “public safety,” just to name a few.

A while back I argued with Professor Saul Cornell of Ohio State University’s Second Amendment Research Center, making much the same points I’m making here. (See? Repeating myself.) Professor Cornell doesn’t believe the Second Amendment means what it says. Neil Schulman contacted an expert on the English language and asked him to parse the idea that Ian mildly reworded. Here is what Neil found:

I just had a conversation with Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction of the Los Angeles Unified School District. Mr. Brocki taught Advanced Placement English for several years at Van Nuys High School, as well as having been a senior editor for Houghton Mifflin. I was referred to Mr. Brocki by Sherryl Broyles of the Office of Instruction of the LA Unified School District, who described Mr. Brocki as the foremost expert in grammar in the Los Angeles Unified School District — the person she and others go to when they need a definitive answer on English grammar.

I gave Mr. Brocki my name, told him Sherryl Broyles referred me, then asked him to parse the following sentence: “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”

Mr. Brocki informed me that the sentence was overpunctuated, but that the meaning could be extracted anyway.

“A well-schooled electorate” is a nominative absolute.

“[B]eing necessary to the security of a free State” is a participial phrase modifying “electorate.”

The subject (a compound subject) of the sentence is “the right of the people.”

“[S]hall not be infringed” is a verb phrase, with “not” as an adverb modifying the verb phrase “shall be infringed.”

“[T]o keep and read books” is an infinitive phrase modifying “right.”

I then asked him if he could rephrase the sentence to make it clearer. Mr. Brocki said, “Because a well-schooled electorate is necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.”

I asked: “can the sentence be interpreted to restrict the right to keep and read books to a well-schooled electorate — say, registered voters with a high-school diploma?” He said, “No.”

I then identified my purpose in calling him, and read him the Second Amendment in full: “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.”

He said he thought the sentence had sounded familiar, but that he hadn’t recognized it.

I asked, “Is the structure and meaning of this sentence the same as the sentence I first quoted you?” He said, “yes.” I asked him to rephrase this sentence to make it clearer. He transformed it the same way as the first sentence: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

I asked him whether the meaning could have changed in two hundred years. He said, “No.”

I asked him whether this sentence could be interpreted to restrict the right to keep and bear arms to “a well-regulated militia.”

He said, “no.” According to Mr. Brocki, the sentence means that the people are the militia, and that the people have the right which is mentioned.

I asked him again to make sure:

Schulman: “Can the sentence be interpreted to mean that the right can be restricted to ‘a well-regulated militia?'”

Brocki: “No, I can’t see that.”

Schulman: “Could another professional in English grammar or linguistics interpret the sentence to mean otherwise?”

Brocki: “I can’t see any grounds for another interpretation.”

I asked Mr. Brocki if he would be willing to stake his professional reputation on this opinion, and be quoted on this. He said, “Yes.”

At no point in the conversation did I ask Mr. Brocki his opinion on the Second Amendment, gun control, or the right to keep and bear arms.

Stopping Power, pp. 151-152

However, people like Professor Cornell, Senator Diane Feinstein, the Violence Policy Center’s Josh Sugarmann and thousands if not millions of others are quite willing to ignore the plain meaning of the sentence and “interpret” the Second Amendment, and they are ecstatic when judges (such as the three on the bench when the 9th Circuit decided Hickman v. Block) decide things the way they’d like, rather than the way the Constitution is supposed to constrain them. As I quoted before, even überliberal Alan Dershowitz understands the inherent dangers:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of a public safety hazard, don’t see the danger in the big picture. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.

Yet it’s been going on for decades, and the Second Amendment is hardly the only one under such attack.

Scalia again:

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society – if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.
If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English – whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.
Secondly, and this is the killer argument – I mean, it’s the best debaters argument – they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it – the original meaning of the Constitution – I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury – once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.
Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question – you know I speak at law schools with some frequency just to make trouble – and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

And here’s where I quote (again) my favorite justice on my pet topic, 9th Circuit Justice Alex Kozinski, in his dissent to the denial to hear Silveira v. Lockyer en banc:

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.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller‘s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion – popular in some circles – that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history – Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few – were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these 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.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

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.

The sheer ponderousness of the panel’s opinion – the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text – refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it – and is just as likely to succeed.

(All emphasis in original, most legal references removed for clarity.)

Now there’s a man who can read and understand a sentence.

“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.” And what might give the government the belief that it could refuse to stand for reelection? What might strip the courts of their “courage to oppose” or the people their power to resist?

How about the systematic evisceration of the Constitution by making it a “living document” decided on by nine black-robed Justices who have, as Scalia pointed out, divorced themselves from the restrictions of that document. And we’ve let them. Scalia one more time:

The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that way lies chaos.

The point of Ian’s post is that words mean things, and the Second Amendment is a clause in the legal contract that established this nation. Whether you like it or not is immaterial. There is, in that legal contract, a method by which it can be changed – the amendment process. Yet not once have I seen any gun control group suggest that the Second Amendment be repealed through that process. Instead they have grasped the “living Constitution” concept and tried to redefine the meaning to mean what they want, rather than what it really means. The same for abortion, gay rights, property seizure under RICO statutes, “campaign finance reform” limits on political speech, and so on.

Ian’s argument was no straw-man. The “intelligentsia” vs. “militia” wording was immaterial, yet most of his respondents tried to parse the sentence and argue minutia, avoiding the blindingly obvious.

I’ve said it before, the Founders tried to make a foolproof system, but we keep making better fools.

One Man’s Misfortune is Another’s Opportunity

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I just had a fascinating and thoroughly enjoyable evening. Clayton Cramer noted on his blog that he was going to be in Tucson this weekend to contribute to David T. Hardy’s Second Amendment Documentary. As soon as I saw that, I went to David Hardy’s blog, Of Arms and the Law, and left an invitation to buy these men a beverage of their choice.

Well, Clayton’s flight home today got cancelled due to snow in Denver, so I got to go one better. I had dinner with them both tonight. I also got Clayton to autograph my copy of For The Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. For almost two hours we got to discuss a wide variety of topics, including Prof. Saul Cornell, Originalism, Silveira v. Lockyer, 9th Circuit Justice Alex Kozinski, and a lot more. It was GREAT! And I have (bad) photographic evidence, taken with my el-cheapo camera:

That’s David Hardy on the left, Clayton Cramer on the right. (They’re much less blurry in person.)

Thank you, gentlemen. Thank you very much.

Update: Clayton’s home and blogged about his trip.

Oh, and Clayton? The last name is Baker! 😉

The ACLU Backtracks – Without Any Explanation

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But I have a good idea why. On January 13, I posted The ACLU Defines What is and What Isn’t A Fundamental Civil Liberty, having picked up the link from Different River via Clayton Cramer. Well Striderweb found the story here, and wrote the ACLU a nice letter. Specifically, he told them:

Actually the first freedom mentioned in the First Amendment is the free exercise of religion. The elipses in your quote, which omits the religion clause, is flatly deceitful.

He reports that on January 27 – without explanation – the ACLU revised its web page to show the entire First Amendment, and they now say:

It is no accident that freedom of speech is protected in the First Amendment of the Bill of Rights

where before they stated:

It is probably no accident that freedom of speech is the first freedom mentioned in the First Amendment

I love the internet. Widespread dissemination of information, and instant feedback.

Just Figured That Out, Did You?

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The London Sunday Telegraph is still pushing for legislation to allow homeowners the use of unrestricted force against home invaders, though as I noted last week, the campaign seems to be losing steam. This week’s entry is as follows:

‘The system seems to bend over to help the criminal at the expense of the victim’
By Karyn Miller
(Filed: 28/11/2004)

(And that isn’t a victim of a burglary speaking…it’s one of the former chief constables who are backing the Telegraph’s campaign)

Former chief constables have backed The Telegraph’s campaign to give people more rights to protect their homes and families from violent intruders.

The retired police chiefs, who have more than 200 years of service between them, believe that the balance of the law has swung in favour of burglars at the expense of law-abiding householders.

They pledged support for this newspaper’s call for legislation giving householders the unqualified right to use force – including deadly force if necessary – against burglars, without facing criminal charges from the police or being sued for compensation. Similar legislation introduced in Oklahoma in 1988 – known as the Make My Day Law – has halved burglaries.

Among those former police chiefs expressing support last week was William Wilson, 61, who was chief constable for Central Scotland at the time of the 1996 Dunblane school shootings, which led to a ban on members of the public owning handguns.

And what a world of good that did.

Mr Wilson, who was chief constable between 1990 and 2000, said: “You can list me as a supporter of your campaign. Anything that can reduce housebreaking has got to be backed I can identify a trend for the law being tougher on the householders than it used to be.”

Gee, ya THINK? Yet according to Tim Lambert, it’s only the “gullible gunners” who believe this.

Sir Geoffrey Dear, 66, who was the chief constable of the West Midlands between 1985 and 1990, agreed that the current law, allowing “reasonable force” to be used against intruders, could no longer be relied upon. “The Crown Prosecution Service has to a certain extent, in this last quarter century, been looking at reasonable force in far too narrow a way,” he said. “They haven’t tried to put themselves sensibly and properly into the place of the householder.

“If you chance upon somebody in the dark you have no idea what he has in his hand: nothing, a knife, a screwdriver or even a gun. It all happens in a flash. I don’t think you have time to weigh up what is proportionate and what isn’t. I say that if you hit him and cause him grave damage, then tough. Your campaign has every chance of success.”

Not too familiar with the legislative process, eh? Getting the government to yeild back any of the legitimate use of force will be very difficult.

Peter Joslin, 71, the chief constable for Warwickshire from 1983 until his retirement in 1998, said: “I was regarded as a liberal thinker in my time, but the system seems now to bend over to help the criminal at the expense of the victim. What happens today is frightening. The criminal’s rights should not supersede the rights of the individual to protect their property.

But what you’re saying is, it does. This is that “chilling effect” I finally got Tim to (grudgingly) admit to.

“If there was an intruder in my home I would go to fairly extreme lengths to defend myself, because it is no good waiting for him to strike you first before you defend yourself. The police advice to lock yourself away in a room and dial 999 is all very well, but life’s not like that.”

Another former senior policeman backing the campaign was John Stalker, 65, the deputy chief constable of Greater Manchester between 1984 and 1987.

He said: “I believe that a house is something to be defended at all costs by the people who buy it and live in it, because they are entitled to believe that it is a place of safety, sacrosanct from outsiders.”

Yes, the Englishman’s home was once his castle – but no longer.

George Esson, 62, the chief constable for Dumfries and Galloway between 1989 and 1994, said: “I’m not surprised at the level of support for your campaign. If somebody came into my property in the middle of the night, I would feel it was my inalienable right to defend it.” The former officers’ backing came in the same week that the campaign was boosted by an informal poll of listeners to Jeremy Vine’s Radio 2 programme. His show on Wednesday featured a debate about the campaign between Dominic Lawson, the editor of The Telegraph, and Lord Phillips of Sudbury, a solicitor and Liberal Democrat peer who opposes any change in the law.

More than 5,900 listeners voted afterwards, with more than 97 per cent backing a change in the law and less than two per cent opposing it.Readers can listen to a replay of the show by visiting the BBC’s website. It can be accessed at www.bbc.co.uk/radio2/shows/vine.

I’ll have to give that a listen, if I ever get any spare time.

It’s UNANIMOUS!

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The Illinois Supreme Court announced two interrelated decisions today, both on gun manufacturer and distributor liability when the product they manufacture and sell is used criminally. Both decisions were unanimous. Both decisions threw out the lawsuits against the manufacturers and distributors. Both decisions have some interesting points. The first, City of Chicago v. Beretta contains the following:

Plaintiffs’ specific allegation against the named dealer defendants is that they “sell firearms even when they know or should know that the firearms will be used or possessed illegally in Chicago.” This allegation is supported by assertions that dealers know some of their customers are residents of Chicago and that it is illegal for those customers to use or possess these weapons in the city; that dealers make sales even when the words or behavior of the buyers indicate an intention to use the weapon illegally; that dealers sell handguns designed to be carried as concealed weapons, even though state law prohibits the carrying of concealed weapons; and that dealers make multiple sales to individuals whom they know or should know intend to resell the guns in the city. The second amended complaint identifies the dealer defendants as part of a “core group of irresponsible dealers” who attract the business of gunrunners and other criminals, as reflected by ATF trace data. The complaint also includes factual assertions regarding numerous undercover “sting” operations carried out by police officers at the various dealer defendants’ stores. Plaintiffs further assert that the dealers’ practices “have caused a large underground market for illegal firearms to flourish in the City of Chicago,” and that they “know that many of the firearms they sell are used or possessed illegally, and put into the underground market.” Finally, the complaint states that the dealers’ “actions and omissions in selling firearms to Chicago residents that are illegal in the City of Chicago unreasonably facilitate violations of City ordinances, and contribute to physical harm, fear and inconvenience to Chicago residents, and are injurious to the public health and safety of Chicago residents.”

—
We have found no Illinois case recognizing a public right to be free from the threat that members of the public may commit crimes against individuals.

And you won’t, because that would raise the specter of making the State liable for not protecting individual citizens – and that won’t happen.

Leaving aside for a moment the costs incurred by plaintiffs, which we determine, below, are not recoverable as damages, we query whether the public right asserted by plaintiffs is merely an assertion, on behalf of the entire community, of the individual right not to be assaulted.

Understand the difference here: You have a right not to be assaulted. From that right comes the power of the State to arrest and punish such an assailant. It’s not a carte blanc to allow the State to do whatever it feels necessary to prevent you from being assaulted, it’s a recognition that actually assaulting someone is a criminal act. The plaintiffs here are trying to stretch the law, and the court recognizes the enormous problem inherent in that Pandora’s Box, and they illustrate it here:

By posing this question, we do not intend to minimize the very real problem of violent crime and the difficult tasks facing law enforcement and other public officials. Nor do we intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent. Rather, we are reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.

For example, the purchase and consumption of alcohol by adults is legal, while driving under the influence is a crime. If there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.

But they shut that line of reasoning down, hard and emphatically

We conclude that there is no authority for the unprecedented expansion of the concept of public rights to encompass the right asserted by plaintiffs. Further, because we conclude, below, that plaintiffs’ claim does not meet all of the required elements of a public nuisance action, we need not decide whether to break new ground by creating such precedent.

—
Plaintiffs concede that their public nuisance claim, based on the alleged effects of defendants’ lawful manufacture and sale of firearms outside the city and the county, would extend public nuisance liability further than it has been applied in the past. Nevertheless, they, and the amici in support of their position, argue that extending the doctrine of public nuisance in this manner is a proper exercise of this court’s inherent authority to develop the common law.

And they cite previous case law that argues against this line of reasoning:

Cases from other jurisdictions in which reviewing courts have rejected public nuisance claims against the gun industry offer more analysis of this question. In Spitzer v. Sturm, Ruger & Co., a New York appellate court observed:

“[G]iving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.

“All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.” Spitzer, 309 A.D.2d at 96, 761 N.Y.S.2d at 196.

Citing an earlier case rejecting a theory of negligent marketing against a gun manufacturer, the Spitzer court observed that ” ‘judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.’ ” This concern, the court, noted, “is common to both negligent marketing and public nuisance claims.”

Similarly, a federal court of appeals, applying New Jersey law, concluded that:

“Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law ‘would become a monster that would devour in one gulp the entire law of tort,’ [citation]. If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity.”

In addition, a Florida appellate court affirmed the trial court’s dismissal of Miami-Dade County’s action against firearms manufacturers, trade associations, and retailers, saying:

“The County’s request that the trial court use its injunctive powers to mandate the redesign of firearms and declare that the appellees’ business methods create a public nuisance, is an attempt to regulate firearms and ammunition through the medium of the judiciary.”

A Florida statute expressly reserves the field of regulation of firearms and ammunition to the state legislature (Fla. Stat. §790.33 (1999)). In Illinois, cities and counties are free to impose gun regulations within certain limits (see 720 ILCS 5/47-5 (West 2002)). Nevertheless, we agree with defendants that the Florida court’s observation is worthy of consideration.

Defendants’ position is that the legislative and executive branches of state and federal government are better suited than this court to address the societal costs that flow from the illegal use of handguns, particularly given that the commercial activity at issue is already highly regulated. Further, defendants argue that plaintiffs’ “frustration” at their inability to effectively regulate gun possession in the city cannot be “alleviated through litigation as the judiciary is not empowered to ‘enact’ regulatory measures in the guise of injunctive relief. The power to legislate belongs not to the judicial branch of government, but to the legislative branch.”

And that, ladies and gentlemen, is a resounding legal slapdown.

More:

In the present case, the question is whether dealer defendants, given the nature of the product they sell, their awareness of Chicago ordinances regarding firearms, and their knowledge that some of their customers are Chicago residents, could reasonably foresee that the guns they lawfully sell would be illegally taken into the city in such numbers and used in such a manner that they create a public nuisance.

We conclude not. We agree with the conclusion of the appellate division of the supreme court of New York in Spitzer: “defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm.”

This result is consistent with other Illinois cases in which a defendant’s conduct was found to be so remote from the resulting injury that legal cause was not established.

And here’s an example case:

Although we have found no reported cases in which a nuisance claim has been dismissed at this stage for lack of legal cause, the case of Watson v. Enterprise Leasing Co., 325 Ill. App. 3d 914 (2001), in which the theory of liability was negligent entrustment, offers some interesting parallels to the present case. The defendant was a merchant who furnished a condition by which the injury was made possible. Specifically, Enterprise leased a vehicle to one party with the knowledge that it was likely to be driven by one or more third parties. The lessee entrusted the vehicle to a friend, from whom it was taken by yet another person. Eventually, an intoxicated minor took the keys from that person and caused an accident resulting in the death of his passenger. Affirming the trial court’s grant of summary judgment for the defendant, the appellate court noted that the element of cause in fact had been satisfied. Absent the leasing of a car to the first individual, the death would not have occurred-at least not in an accident involving this particular vehicle. The intoxicated driver would either not have driven at all and there would have been no accident, or he would have obtained the keys to another vehicle and the accident would have occurred, but would not have involved the defendant’s vehicle. Thus, the appellate court concluded, the “crux of the issue” was “legal cause, which revolves around foreseeability.” The driver who caused the fatal injury, the court noted, was at least two steps removed from the person to whom Enterprise directly entrusted the car. In addition, the accident was caused by the criminal act of a third party. These events were not reasonably foreseeable. Although the defendant furnished a condition that made the resulting injury possible, the creation of this condition was not the legal cause of the fatal accident because the defendant’s conduct was too remote to constitute legal cause. As the appellate court observed, to “impose foresight on defendant under the particular circumstances present in this case would render it liable for anyone who drove the car, thus making it strictly liable.”

The parallels to the present case are obvious. Dealer defendants, like the car rental company in Watson, are in the business of providing a lawful product that may be used in unlawful ways, causing injury or death. Both the possession and use of firearms and the driving of motor vehicles are highly regulated by state law. In the present case, the existence of the alleged nuisance in the city of Chicago is several times removed from the initial sale of individual weapons by these defendants, just as the intoxicated driver was at least twice-removed from the defendant in Watson.

The appellate court in Watson found it unreasonable to expect the car rental company to foresee a single accident caused by an intoxicated teenage driver who took the keys to the car without the permission of the person who had rented the car. In the present case, the claim of negligent entrustment has been dismissed and its dismissal has not been appealed. Thus, we are not faced with the question of whether a gun dealer might be held liable for negligently entrusting a weapon to an individual buyer when it is foreseeable that the buyer might allow a third party to possess or use the gun illegally. Instead, plaintiffs argue that it is foreseeable to these defendants that the aggregate effect of numerous sales transactions occurring over time and in multiple different locations operated by businesses with no ties to each other will result in the creation of a public nuisance in another city.

Here’s the part I like, because they spell out their thinking explicitly:

Finally, although these dealers’ sales of weapons create a condition that makes the eventual harm possible by putting these weapons in private hands, it is not at all clear that the condition would cease to exist even if these particular defendants entirely ceased selling firearms. Just as in Watson, in which the intoxicated teenager managed to gain access to a set of car keys, those who intend to illegally possess and use firearms in the city of Chicago would still be able to obtain them. The manufacture and sale of firearms is legal. There is a market for these products that is served by thousands of dealers all across the country. The sales that would otherwise have been made by these dealers would be made by others. Ultimately, there would be a shift in market share between these dealers and others and, perhaps, an increase in the price of illegal weapons “on the street” as those intent on illegal gun ownership had to go further afield in search of weapons to buy.

—

Plaintiffs and the amici supporting their position advocate expansion of the common law of public nuisance to encompass their novel claim. They anticipate our reluctance to expand nuisance liability in an area highly regulated by both state and federal law and urge that it is not only within our inherent authority, but it is also our duty, to construe the common law to aid a local government’s effort to protect its citizens from gun violence.

To do so, we would have had to decide each of the issues raised in this appeal in plaintiffs’ favor. In effect, we would have had to resolve every “close call” in favor of creating an entirely new species of public nuisance liability. Instead, after careful consideration, we conclude that plaintiffs have not stated a claim for public nuisance. Even granting, arguendo, that a public right has been infringed, we conclude that their assertions of negligent conduct are not supported by any recognized duty on the part of the manufacturer and distributor defendants and that, under the Gilmore rule (Gilmore, 261 Ill. App. 3d at 661), their allegations of intentional conduct are insufficient for public nuisance liability as a matter of law. In addition, we hold that proximate cause cannot be established as to the dealer defendants because the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts by third parties not under defendants’ control.

And here’s the kicker:

Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts. In response to the suggestion of amici that we are abdicating our responsibility to declare the common law, we point to the virtue of judicial restraint.

We, therefore, reverse the judgment of the appellate court and affirm the judgment of the circuit court, which properly granted defendants’ motion to dismiss.

Pretty good decision. (I’ve excised some of the legal references and selectively edited for better readability. If you’re legally inclined, go to the link and read the decision in whole.)

The second decision released today was Young v. Bryco Arms, and it leaned on today’s City of Chicago decision pretty heavily, since the arguments were essentially identical. I won’t quote from it (however much I’d like to,) since this piece is long enough as it is, but I want you to consider something: Yes, the gun-rights side “won” and most people would expect that the gun-ban forces would be seething to have lost in their favorite forum, the courts. To, in fact, have been slapped down – and hard – in that forum, for trying to legislate through the judiciary.

But that’s not the aim. Consider how much it has cost Beretta et al. to fight this all the way to the Illinois Supreme Court. While the gun-ban forces have been using TAX DOLLARS. The Brady Bunch didn’t file this suit – the CITY OF CHICAGO did. In Young I’m certain that the lawyers were probably acting pro bono with their expenses picked up by Brady, at most.

The purpose of these lawsuits isn’t actually to get the court to make new law – they’d love it if that happened, but I don’t think even they are that delusional. No, what they’re trying to do is bleed the gun manufacturers and especially their distributors to death. They love the appeals process. That means it’s going to be more expensive!

This is why the gun-rights forces tried so hard to get the Protection of Lawful Commerce in Arms Act passed in the last session of Congress. That’s the bill that got killed after Feinstain attached a renewal of the “Assault Weapons Ban” to it. As UCLA law professor Eugene Volokh explained last year, and the Illinois Supreme Court echoed in City of Chicago:

“Why does the gun industry deserve special protection?” asked Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, about the bill that would limit gun manufacturer tort liability, which it seems, might be enacted by Congress. Because the gun industry is under special attack.

If when someone drunk on Coors crashes his Mustang into me, I were able to successfully sue Coors and Ford for selling their products knowing that they cause death, or for recklessly and wantonly refusing to (for instance) install breathalyzer ignition overrides that would (maybe) help prevent drunk driving, then I’d see the bill as being about “special protection” (though then I’d just want it broadened to cars and alcohol, too). But right now, the bill is simply aimed at making sure that the tort liability system treats guns like other lawful but dangerous products.

We need to get that bill passed. Overlawyered reports that its chances of getting through the Senate this time are considerably better:

Gun pre-emption looking good

Last time up, Sen. Dianne Feinstein’s poison-pill amendment passed 52-47, dooming the urgently needed bill although it enjoyed the support on paper of a wide majority of Senators. Now five Democrats among those 52 votes are going to be gone. “Conservative Republicans, all of whom were endorsed by the NRA, will replace all five Democrats.” (Jim Snyder, “Gun lobby, GOP have lawsuits in their crosshairs”, The Hill, Nov. 17).

Unfortunately, Sen. Feinstien was not one of the replaced.

This time we’ll need to push and push hard to kill whatever “poison pill” the gun-grabbers can come up with in their attempt to derail this legislation. Because if we don’t, depend on it – the lawsuits will just keep coming.

The Answer is “NO”

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The Supreme Court has deigned to hear the case of Castle Rock, CO, vs. Gonzales in which one Jessica Gonzales has sued the town of Castle Rock for failing to enforce a protective order against her estranged husband, who abducted their three children, murdered them, and then committed suicide by cop. Ms. Gonzales sued because, she says, her husband violated the restraining order by abducting the children, and the City of Castle Rock police department made no effort to recover her children after she repeatedly asked them to enforce the restraining order. She sued under a due-process argument, claiming that the failure of the police to act violated her rights. Essentially, she argued that by obtaining the restraining order she had a “special relationship” that meant that either: A) the police were obligated to enforce the order; or B) the police were obligated to tell her that they would not.

It’s an interesting argument, and it resulted in an en-banc 10th Circuit 6-5 decision in her favor, but one I think is destined to fail in the high court.

The Washington Post has a story on this case in which they explain:

The case is a sequel to one of the most emotion-laden cases in recent Supreme Court history, 1989’s DeShaney v. Winnebago County, in which the justices ruled, 6 to 3, that a brain-damaged Wisconsin boy, Joshua DeShaney, and his mother could not sue local authorities who knew that the boy was being beaten by his father but did not stop the beatings.

In an opinion by Chief Justice William H. Rehnquist, the court said the constitutional guarantee of due process of law did not “require the State to protect the life, liberty and property of its citizens against invasion by private actors.”

The ruling prompted the late Justice Harry A. Blackmun to exclaim in dissent: “Poor Joshua!”

Yes, poor Joshua. The article also says:

In a 6 to 5 ruling, the appeals court acknowledged that the Supreme Court’s ruling in DeShaney bars any claim based on a right to be protected by local authorities. But the 10th Circuit said the restraining order against her husband gave Jessica Gonzales a strong enough expectation of government protection that she had a due-process right at least to be told in advance if the town was not going to enforce it.

Interesting idea, but I don’t see it flying. Why? Because of this:

The town, Castle Rock, seeks to overturn a federal appeals court ruling that found it liable because it had not given the children’s mother adequate notice of its non-enforcement or a chance to plead her case.

Castle Rock, supported by the International Municipal Lawyers Association and the National League of Cities, contends the Supreme Court must overturn that ruling to prevent a “potentially devastating” flood of lawsuits that “could bankrupt municipal governments . . . given the inevitability of less-than-perfect enforcement.”

And, given judicial precedent, I am forced to agree.

A long time ago I wrote the two-piece essay Is the Government Responsible for Your Protection? – which included the stories of Carolyn Warren, Joan Taliaferro, and Miriam Douglas in Part I, and Linda Riss in Part II. I’m sure these ladies could have used Justice Blackmun’s sympathy as well (though given Linda Riss’s later behavior, my own sympathy for her is more than a little tempered.)

The fact is that the government cannot be made responsible for your protection. It would be, in the end, just too expensive – exactly the reasoning behind the City of Castle Rock’s argument and every prior decision on this topic. But they certainly expect we poor citizens to accept the idea that a restraining order is something more than a mere piece of paper that accomplishes exactly nothing except making it illegal for the party on the receiving end to possess a firearm. Like that actually stopped Simon Gonzales. Or Justin Meyer. Or Antonio Wright. And besides, who needs a gun? Thomas Toolan didn’t. He used a knife. So did Tony Sukto. Jack Fuller Jr.’s weapon is not yet known, but it wasn’t a gun.

Every one of them had a restraining order against them. Not one of them was stopped by said order. There are innumerable other stories, each just as bad if not worse.

The 10th Circuit thinks (6-5) that citizens should be told when a polity isn’t going to enforce a restraining order? Getting the government to admit this fact, baldly, in plain English, is in my humble opinion a pipe-dream. The government isn’t going to admit anything.

But it’s about time the general public figured it out for itself, don’t you think? Perhaps the Supreme Court will be able to get their attention.

(Update, 11/7: A reader points out that there was no restraining order against Thomas Toolan. His victim had looked into getting one two days before her murder, but had not pursued it further. However, would it have made any difference?)

UPDATE 11/8: I found this cartoon (if anyone knows who the artist is, tell me) that illustrates the point quite well:

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Idiocy Fantasy as Policy

The LA Times has a piece up about Brazil’s doomed-to-failure attempt to curb its astronomical homicide rate by – wait for it…

GUN CONTROL!

The LA Times has a registration requirement, but the Tucson Citizen carried the piece. It’s also available in abbreviated form on the Seattle Times site, so I’ve linked to that, but I will include the whole text (as I fisk it) from the Tucson Citizen, including the Citizen’s headlines:

Law’s goal is to disarm gun-heavy Brazilians

By Henry Chu
Los Angeles Times

RIO DE JANEIRO, Brazil — To live in this city and other urban areas of Brazil is to hear the frequent rat-a-tat-tat of gunfire. As many as 20 million firearms are in circulation in this nation of 180 million people, who suffer from one of the highest rates of gun deaths in the world.

Yet according to the UN Small Arms Survey 2003 there are an estimated 238 to 276 million firearms in the United States – nearly a 1:1 parity – and our homicide rate, while quite high, is absolutely eclipsed by Brazil’s. If the number of guns is the problem, the U.S. should have wiped itself out by now, should it not?

Now, under a new law hailed by supporters as the most sweeping gun-control measure in South America, only Brazilians with valid reasons — police and security guards, for example — are allowed to carry firearms in public.

And this will stop the criminals…how?

Ordinary citizens who own guns either must register their weapons, turn them in or face jail time.

And this will affect the criminals…how? I mean, it’s worked so well in England, hasn’t it? Washington D.C., Chicago…

Proponents of the law, which went into effect this month, see it as a badly needed step toward ridding this country of weapons too easily acquired and too often used to kill.

They always do. It never works. But it cannot be an error in the philosophy, only an incorrect implementation of it. They must do it again, only harder!

Critics call it a misguided attempt that will do little to take guns out of the hands of drug dealers and other violent criminals who build their private arsenals through a flourishing illegal arms trade.

Replace “critics” with “realists” and you’d be bang-on. (No pun intended.)

No one, however, disputes the statistics that have made shooting deaths commonplace in Brazil, where officials say someone is killed by a bullet every 12 minutes — more than 40,000 each year.

Pardon the nit-picking, but killed with a bullet. Killed by a PERSON.

By contrast, the United States, which has 100 million more people, recorded about 30,000 gun deaths in 2001, according to the federal Centers for Disease Control and Prevention.

And here we have our very first “GOTCHA!”

What you have here is a classic example of mixing statistics for maximum shock effect. What Brazil is experiencing is a massive increase in homicide – specifically homicide by firearm, but homicide nonetheless. Yet what the author just did was compare Brazilian homicide to all American deaths by firearm.

According to the CDC, in 2001 (latest data available) there were 29,573 deaths by firearm in the U.S. Of those 29,573, there were 16,869 suicides, leaving 12,704 homicides and legal interventions. Also according to the CDC, in 2002 Brazil suffered 49,570 homicides, of which 34,085 were committed with firearms and 6,728 were committed with sharp objects.

Brazil has a population of about 175 million compared to our population of about 300 million. Their “sharp-object” homicide rate is about equal to our firearm homicide rate. Think on that as we continue.

“In six years, the U.S. lost 56,000 men in Vietnam. We have almost a Vietnam each year in Brazil,” said Antonio Rangel Bandeira of Viva Rio. “I show the figures to people in other places and they say, ‘Which country is Brazil at war against?’ “

If you want to get right down to it, it’s a civil war due to America’s demand for illicit drugs. But by all means, beat that “VIETNAM!” meme for everything it’s worth.

Debate over stricter gun controls echoes that in U.S.

The debate over stricter gun controls in Brazil echoes that in the U.S. Gun-control advocates here find themselves up against a similarly established culture of gun possession, partly born of a romanticized rough-and-tumble frontier past in which cowboys, rebels and vigilantes helped expand the country’s settlements and borders.

Cue “Duelling Banjos” and Clint Eastwood.

The newly tightened rules are the fruits of years of lobbying by gun-control activists, who had been stymied in the past by a powerful domestic firearms industry aided, at times, by the National Rifle Association in the United States. Gun-control advocates credit a new, left-leaning government and growing public anger over crime with shifing the political winds in their favor.

Yes, the NRA, in the pocket of the gun industry, is responsible for all of this murder. You read it here in the LA Times, so it must be true.

Passed by the legislature in December, the law requires background checks for prospective buyers, raises the legal age for gun ownership from 21 to 25, demands that all guns be registered and imposes prison sentences of up to four years for violators.

Again, this will affect the criminals… how? This has worked… where?

This will disarm… whom?

It will disarm the law-abiding – and that is all it will do. It will create a more dependent and less protected population. Nothing else.

Anyone with a criminal record will be denied, but critics note that drug traffickers and organized-crime rings get their stockpiles illegally anyway and thus will not be affected.

Again, replace “critics” with “realists” and you’ll be absolutely correct.

Ask the British.

To encourage owners to hand in their weapons instead of simply registering them

(for future confiscation)

the government has set aside $3.3 million for a buy-back program that offers as much as $100 per firearm – more than a month’s wage and a considerable sum for poor Brazilians.

Or, conversely, a drop in the pot to drug smugglers. And how many poor Brazilians have a firearm to sell? I mean, most firearms sell used for more than $100, and when the black market really gets started, what’ll they be worth? Want to bet we’ll see police and military armories getting jacked?

Perhaps most significant, the law calls for a national referendum next year asking voters whether gun sales should be banned.

And, again, this will affect the criminals… how?

Polls show strong public support for such a move.

Well, considering how many poor Brazilians there apparently are, perhaps they believe “If I can’t buy one, you can’t either.”

That dismays Renato Conill, vice president of Forjas Taurus. The company is one of Brazil’s largest gun manufacturers, with annual revenue exceeding $40 million through domestic sales and exports to more than 80 countries.

That would be the “evil bloodsucking” company. Guess the editors clipped that part though.

“We don’t believe that by restricting honest citizens’ access to legal firearms the crime rate will lessen,” Conill said. “Legal weapons aren’t a cause of crime. …The disarmament law will simply stimulate the black market.”

Said the man who actually grasps the lessons of history.

Before, buying a gun in Brazil was an easy affair. A customer had only to show identification and produce proof of employment to be eligible. Now, potential buyers are subject to more rigorous background checks.

Yes, I’m sure that puts a severe crimp on how drug lords arm their armies.

I can’t wait to see them try to explain why the homicide rates don’t go down.

But here’s an easy explanation: The guns aren’t the problem. The drug trade is. Throwing $3.3 million at the gun problem is a complete waste of $3.3 million.

The government’s corrupted by drug money.

Law enforcement is corrupted by drug money.

And now the honest people are going to be disarmed and handed on a platter to the predators.

Way to go, Brazil!