Tag: law

Ladies and Gentlemen of the Jury, In Conclusion…

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I and Tim Lambert, professor of Computer Science and Engineering at the University of New South Wales, Australia and author of the blog Deltoid, have been having an ongoing discussion over self-defense in the UK starting back in March. The debate began over a news piece that stirred the outrage of those of us Tim calls “gullible gunners.” Here’s that piece, published in the UK paper, The Scotsman, in its entirety:

Man Who Killed Armed Intruder Jailed Eight Years

By Will Batchelor, PA News

A man who stabbed to death an armed intruder at his home was jailed for eight years today.

Carl Lindsay, 25, answered a knock at his door in Salford, Greater Manchester, to find four men armed with a gun.

When the gang tried to rob him he grabbed a samurai sword and stabbed one of them, 37-year-old Stephen Swindells, four times.

Mr Swindells, of Salford, was later found collapsed in an alley and died in hospital.

Lindsay, of Walkden, was found guilty of manslaughter following a three-week trial at Manchester Crown Court.

He was sentenced to eight years’ imprisonment.

After the case, Detective Chief Inspector Sam Haworth said: “Four men, including the victim, had set out purposefully to rob Carl Lindsay and this intent ultimately led to Stephen Swindells’ death.

“I believe the sentences passed today reflect the severity of the circumstances.”

Three other men were charged with robbery and firearms offences in connection with the incident, which took place in February last year.

The reaction of several of us was commented on in Tim’s initial post on the subject, Gullible Gunners. Tim commented, in part:

Pro-gunners such as John Lott, Glenn Reynolds and John Derbyshire have written about the Martin case, apparently unaware of the facts that showed that the killing was not in self defence, and proceeded to make bogus claims that self defence was against the law in Britain. Claims which they have never bothered to correct.

—

Now, there are two possible explanations for Lindsay’s conviction:

The jury knew more facts that those which appeared in the brief story and these showed that the killing was not in self defence.

Self defence is illegal in the UK.

The reaction from bloggers was swift and extensive. At the time of writing, Technorati reports 61 blogs linking to the story, all going for explanation 2, none even considering the possibility that the killing was not self defence.

Note that Tim doesn’t wonder why 61 out of 61 blogs choose option 2 – to him it’s obvious that we’re all just “gullible gunners” and there is no prior evidence that would lead us to believe that “self defence is illegal in the UK,” this story being only the latest example. No, we’re obviously just leaping to conclusions based on our inherent pro-gun bias. (What that bias indicates, I leave to you, the jury.)

Tim noted that further details emerged indicating that perhaps this was not merely a case of self-defense. That, in fact, Carl Lindsay had pursued his attackers into a hallway and had stabbed Stephen Swindells in the back four times, thus prompting the murder charge. Instead, the jury found him guilty of manslaughter for an act of retaliation against the men robbing him.

I was one of those who posted on the story. In my piece I said:

The Next Time Someone Tells You that Self-Defense isn’t Illegal in the UK, (for all intents and purposes,)…

And pointed to the Scotsman story. I then added, after the additional details were brought out:

However, were you a reader of this story – provided without nuance – would you not draw the conclusion that defending yourself against attack is legally risky?

That’s my point – the general public in the UK is actively discouraged from self-defense, in fear of prosecution.

“You can’t protect yourself! You’re not qualified!”

The following week Tim posted his first piece, and I began the debate with him in the comments to that piece.

In response to that initial post by Tim I made this point:

[T]here have been numerous cases of the British courts charging people for defending themselves. The law there seems to be one based on “proportional response” – e.g., stabbing someone who isn’t armed with a weapon is “excessive force.” So is bashing them over the head with a brick. There are many of these cases, and they’ve lead us to the conclusion that private citizens in Britain had best not resist attack, or face prosecution for usurping the authority of the State in its monopoly on the legitimate use of force. My primary objection to the news story was that it reinforces that conclusion. If you are a reader of that story, ignorant as to the details, in combination with all the other similar stories of people prosecuted after defending themselves, the message is “don’t resist, you’ll go to jail.”

In a later comment, I added:

You object to our near unanimous conclusion that “self defense in the UK is illegal,” poo-pooing it as “gullible,” but for all practical purposes that assertion is true. Stories like the Scotsman piece reinforce that understanding. All it said was (in abbreviated form) “One man attacked by four. One of the four had a gun. Man defended himself with a sword, killing one of the four. Defender sentenced to eight years.” When faced by four attackers, one armed with a firearm, it seems the “instinctive” reaction the government wants is for the victim to curl into a ball and surrender. Any other action is deemed “antisocial,” apparently.

Tim and I (and others) continued this debate over the course of the next couple of months. Tim posted a follow-on piece, Gullible Gunners, Again in response to my comments in which he states:

Baker continued to insist that self defence was illegal in practice in the UK. His argument was that England’s “laws concerning weapons make self-defense, for all intents and purposes, a lost cause”. His argument is badly wrong for two reasons.

1. Using a weapon is not the only way to defend yourself.

2. If the law disarms attackers, then it can make self defence possible where it would have been impossible if the attacker was armed.

My response was a post of my own. Tim responded in the comments of Gullible Gunners, Again, where he said:

As far as I can tell, American pro-gunners are constantly on the lookout for news stories about how terrible things are in the UK. So far they have found a total of exactly zero cases where someone has genuinely acted in self-defence and been convicted of (or even prosecuted for) a crime. That’s zero. But you seem to think that it happens all the time.

and

Next we come to your bizarre misreading of my statement:

“If the law disarms attackers, then it can make self defence possible where it would have been impossible if the attacker was armed.”

You claimed that I was somehow saying that “Honest citizens should never use a weapon in self defense” even though I wasn’t and insisted that was the only possible meaning even though I had written nothing the slightest bit even remotely like that. Consider two scenarios:

1. Attacker has a gun. Defender does not.

2. Attacker does not have a gun. Defender doesn’t either.

Self defence is possible in the second scenario while it isn’t in the first one. Is that clear now?

One of my commenters, Sarah, rephrased Tim’s statement thus:

If the law disarms citizens, then it can make self defence impossible where it would have been possible if the citizen was armed.

That about covers that.

I responded here. You can see this exchange has been quite involved. (I doubt many people have bothered to read this far, though I’m sure this post will draw some comments. If you really have struggled through to read to this point, please, let me know.)

Tim then posted his third piece, Gullible Gunners, Part 3 on May 4. In that piece he states:

He (that would be me) has “spent a considerable amount of time trying to do archive research through UK online newspapers for stories on self defense”, and found not one story where someone was prosecuted for defending themselves. So where do we stand here? Despite strenous efforts, we have not one case where the British courts have charged someone for defending themselves. All we have is two cases (Lindsay and Martin) where the killing was not self-defence, but were presented by pro-gunners to make it look like it was.

Now, if you’ve taken the hour or two necessary to slog through this entire discussion; links, comments, etc., to this point, I applaud you. There are probably forty-thousand words or more to this point, and we rambled on over a fairly wide variety of topics. But it all comes down to the original point: Is self defense in the UK legal in practice? I’ve already noted that it is legal by statute, but I have held that prosecution of what appears to we “gullible gunners” open-and-shut cases of self defense in fact proves that the State does not uphold the idea that violence in self defense is acceptable. Tim claims that I have found “not one story where someone was prosecuted for defending themselves,” “…we have not one case where the British courts have charged someone for defending themselves.”

There’s that tricky semantics question again. Just what constitutes “prosecution for self defense?” I imagine Tim’s definition is considerably more strict than mine. I did, in fact, point to this story in which a wheelchair-bound man used teargas to defend himself against a mugger. Teargas is considered an “offensive weapon” in the UK and is illegal (for a subject) to possess. The man was charged for possession of the teargas, but not, apparently, for using it. Was he “prosecuted for self defense”? I think so. Tim probably would not. I think that New York resident Ronald Dixon was “prosecuted for self defense” when he was charged with having an unlicensed firearm after he used that firearm in self defense. I think that Cook County Illinois showed decency and good sense when it chose NOT to prosecute Hale DeMar for the same “crime” when he used his handgun in self defense.

Now, consider those two American cases. In both, the home of the gun owner was invaded by a man. The owner did not know if the invader was armed, but in both cases the owner used deadly force against the intruder. In neither case was the owner charged for the use of deadly force, but only risked prosecution for having a weapon he was not legally entitled to have. It was patently obvious to the investigators that an intruder was in the home, and it was patently obvious that the homeowner had the right to use lethal force against the intruder. In both cases the intruder could have died. Contrast that to the case of Thomas O’Connor, a 63 year-old nearly blind man whose home was invaded by a 23 year-old man who broke the front door in, knocking it off the hinges and out of its frame. Mr. O’Connor grabbed a knife and stabbed the invader, giving him a fatal wound. Mr. O’Connor then suffered through a seven week murder investigation before the Crown decided not to prosecute because – and I quote – “[I]t is not believed we would be able to disprove a case of self defence against [this man].”

Still, it seems from Tim’s writing that if I could come up with just one example of the government prosecuting someone for an obvious case of self defense, I would prove my point that government discourages the act of self defense by making it legally risky to do so. I promised that I would do more research and respond.

Well, I have, and this is it. (Hell of a prologue, no?)

First, let me go back again to the comments in Tim’s posts. A couple of cases were brought up that Tim decided were at best inconclusive. The first was the case of Mark Barnsley, and second was that of Satpal (or Saptal, depending) Ram. Tim didn’t comment on the Mark Barnsley case, but concluded based on this page that the Ram case couldn’t be self defense because Mr. Ram had apparently also stabbed someone in the back. It’s been said that on the internet anyone can write anything, so I’m not exactly certain why that one page makes Mr. Ram’s claims of self-defense invalid. According to this Guardian article Mr. Ram was supposedly assaulted by a man using a broken glass as a weapon. His crime was apparently not backing down and being a good (read “meek”) subject in the face of racism. Mr. Ram defended himself against attack, got a lousy lawyer, and received a life sentence. Hmm… So which version is true? You be the jury.

The case of Mark Barnsley seems less ambivalent to me. He was attacked by a group of as many as 15 drunken college students, and defended himself while receiving a severe beating. He, according to the story, picked up a knife dropped by one of his attackers and hung onto it during the attack to keep from having it used against him. Some of his attackers received wounds. Mr. Barnsley was the only person charged. What’s the truth? I don’t know, but I know what it looks like from what I’ve been able to read. I’ll leave it to those interested to do the research for themselves, and again be the jury.

I’ve spent quite a few hours scouring the various UK newspaper online versions for stories of self defense. I have reached one fairly strong conclusion – either it doesn’t happen much in the UK, or the papers simply won’t report it unless it’s a spectacular case. However, if someone is severely injured or killed, it is apparent to me that the Crown will file a charge unless, as it was in the case of Mr. O’Connor, it is blindingly obvious (no pun intended) that they cannot disprove self defense.

I said early on that self defense was legally risky in the UK because by exercising your right you run the very real risk of being prosecuted. That legal risk has a chilling effect on the exercise of the purported right. So let’s look at a couple of examples I found.

First, there’s the 2002 case of Barry-Lee Hastings, who was cleared of a murder charge, but convicted in a 10-2 jury decision of manslaughter and sent to jail for five years. (Tony Martin was found guilty of murder in a 10-2 jury decision as well.) This case has very much in common with the one that started all of this. Mr. Hastings, visiting the home of his estranged wife, found one Roger Williams burglarizing the home. Mr. Hastings, unaware that his wife and children were not at home, grabbed a bread knife from the kitchen and attempted to intervene in the belief that the burglar was armed with a machete and that his wife and children were at risk. Mr. Williams was stabbed 12 times – in the back – and died of his wounds. Here’s what the prosecutor said:

“The law recognises a man is entitled to defend himself, his family and his property – only if his action does not go beyond the reasonable and the necessary.

“There is no doubt Mr Hastings stumbled across a burglary. There is no doubt that Roger Williams was a thoroughly bad hat in the eyes of the law.

“But, none the less, as a human being he is just as entitled to the freedom to live as anyone else. We argue that in this case, alas, this man overstepped the mark and went some distance beyond that.”

But here’s what the law says, as provided to me by Tim Lambert:

Section 3 of the Criminal Law Act 1967 provides that a person may use such force as is reasonable in the circumstances in the prevention of crime, and the question of reasonableness is subject to the amplifications contained in such cases as R v McInnes and R v Palmer. It has been held that “if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.” Normally only reasonable force is acceptable but if in the unexpected anguish of the moment excessive force is used it may still be acceptable, if the defendant honestly and instinctively believed it was necessary. It has been long established (prior to either the Criminal Law Act 1967 s 3 or AIDS) that a woman may take the life of a man attempting to rape her, though she may not generally carry a weapon to achieve this.

A fact that renders the right to use lethal force essentially meaningless, but I digress.

When a defendant deliberately used a lock knife he had opened prior to an incident, and stabbed an assailant after the defendant had received a single blow to the face, it was held that this could not possibly be reasonable.

On the other hand, if a plea of self-defence is raised when the defendant had acted under a mistake as to the facts, he must be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. So where a policeman shot dead a man who was unarmed and had already surrendered he was still entitled to claim his action was self-defence if he honestly believed this to be the situation. The test is whether his action was reasonable in the situation as he perceived it, rather than as it actually was.

Note, it’s apparently OK for cops to shoot people they believe to be armed, but not for people to stab – in the back – people they believe to be a danger. Now, contrast this case to the Hale DeMar and Ronald Dixon cases. In both of those cases the homeowner shot the intruder – a definite use of lethal force – yet neither was charged with attempted homicide or excessive use of force or anything having to do with the woundings. It was, to Americans, an absolute case of righteous self defense. In the case of Mr. Hastings, he believed that his wife and children were at home and at risk, and he attacked to protect them. Yes, the burglar was stabbed in the back. So? If you’re grappling with an attacker with a knife in your hand, where is the blade going to go? Mr. Hastings’ lawyer said:

“We are shocked by the verdict. The evidence clearly showed that Barry-Lee Hastings acted in self-defence. Most people will recognise that the verdict today represents an appalling miscarriage of justice and flies in the face of common sense.”

Apparently he’s another “gullible gunner.”

Then there’s this case from 2000 in which a homeowner beat the snot out of a burglar wth a baseball bat.

A judge yesterday reignited the debate over the law on self-defence by asserting that a householder who repeatedly beat a burglar with a metal baseball bat had been using “reasonable force”.

David Summers, 21, a drug addict, suffered a broken wrist, fractured elbow, cracked ribs and a cracked skull. He had broken into the Peterborough home of Lee Gapper, 20, and his lodger George Goodayle, 21, both self-employed builders.

—

Mr Gapper and Mr Goodayle were arrested by Cambridgeshire police and held for 12 hours. The crown prosecution service decided not to bring charges against them.

Last week the Tory leader, William Hague, said the law on self-defence should be changed to give greater protection to people who were forced to defend their homes against intruders. He was accused of trying to exploit public outrage at the murder conviction of the Norfolk farmer Tony Martin, who shot dead a teenage burglar.

Gee, ya THINK? Still, they weren’t actually charged.

And there’s this case from 2003 in which an evil rich capitalist company director was charged with manslaughter in the death of a burglar. Acting as temporary night watchman, one Steven Parkin intervened in an attempt to steal a truck from his business, using a pickaxe handle and, supposedly, a knife with which he slashed the man across the back of the knee. However,

Judge Richard Pollard directed the jury to return a verdict of not guilty after a pathologist told the court he could not rule out the possibility death was caused by an accident.

Sounds like Mr. Parkin dodged a bullet, so to speak. But he was definitely charged and tried.

Still, there’s other good news. In this case homeowner John Lambert (any relation?) was cleared by a jury in a case where he stabbed a burglar to death. Apparently this time the burglar wasn’t stabbed in the back. Still, Mr. Lambert was held for two days before being released on bail prior to the inquiry that found his action to be defensive. I’d find that idea chilling – that for defending my wife and home I had to spend two nights in jail.

But this is all so confusing, isn’t it? Well, this BBC piece from January 2003 says yes:

MP calls self-defence laws unclear

A Norfolk MP has said people are not sure what they are allowed to do to protect themselves and their property from burglars.

Henry Bellingham, a Conservative representing north west Norfolk, told the Commons the law should be made clear.

He said: “If lawyers, safe in their offices, can’t work out what is right how can the householder be expected to weigh up the pros and cons in the middle of a violent struggle in the dark?

Damned good question. It goes right to the heart of that “reasonableness” argument, doesn’t it? And the question of what you believe even if your belief is wrong.

People who believe they or their family are in imminent danger are allowed to use “reasonable force” to defend themselves but cases are examined individually and a decision to prosecute is based upon the circumstances.

And those decisions appear to be somewhat random and capricious. Not something you want associated with the law when your life and your freedom are in question.

One of Mr Bellingham’s constituents is farmer Tony Martin, who was jailed for shooting dead a teenage burglar.

It would appear that Mr. Martin’s case stirred up a hornet’s nest of controversy concerning self defense in the UK.

So, have I found that one case that proves my point? I think so, and it just so happens to come from the very same paper that started all of this, The Scotsman:

Man Who Stabbed Blood-Soaked Cocaine Addict Jailed

By Simon Baker, PA News

A 23-year-old man was jailed for five years today for stabbing to death a cocaine-addled and blood-soaked intruder who terrified a group of friends after he smashed his way into a flat.

Brett Osborn knifed Wayne Halling five times in the back after the 30-year-old burst into the property in Romford, east London, following a drug-fuelled rampage on August 24 last year.

Mr Halling – a cocaine addict who had taken a massive dose of the drug – had already caused himself around 90 separate injuries by smashing the windows and doors of several other houses on Regarth Avenue.

Woolwich Crown Court heard that the huge cocaine dose had made him numb to pain and had also pushed him into a paranoid search for his girlfriend, who lived with him on the same street, but who was away on holiday.

Osborn, who had also taken a small amount of cocaine and had been drinking, told police that he stabbed Halling to protect himself and those at the flat, including a pregnant woman.

Mr Halling, who was “streaming with blood”, had already smashed his way into the maisonette once but had been kicked out by a friend of Osborn.

After the stabbing, paramedics were were unable to save Mr Halling and he was declared dead on arrival at hospital.

Osborn, of Upminster, east London, denied any wrong-doing on the grounds of self-defence, but then at a court hearing earlier this week admitted manslaughter by reason of provocation.

Judge Shirley Anwyl QC said that she accepted that Halling could have been perceived to be “dangerous to others”.

But she added: “With hindsight it is clear that Halling was presenting no real danger to anyone but himself.

Hindsight. It’s always 20/20, isn’t it? But that’s not what the law is supposed to be based on, is it?

“By your plea you have accepted that you intended real serious injury. Your use of violence was not wholly unpremeditated in that you did equip yourself with at least one knife.

She added: “I am in no doubt about your genuine remorse and your appreciation of the appalling effect that the killing of Halling has and continues to have on his relatives and friends.”

The court heard that Osborn is already serving a two-and-a-half-year jail sentence handed down earlier this month at Grimsby Crown Court for his part in a benefit fraud conspiracy.

Not “unpremeditated” because he picked up a knife.

Mr. O’Connor “picked up a knife” and he didn’t get charged. Mr. Lambert “picked up a knife” and he didn’t get charged. But Carl Lindsay picked up a knife and got a manslaughter conviction. It appears that Osborne, like Satpal Ram, had a lousy lawyer.

That’s not the only version of the story. There’s one on the London Times site, but I’m not paying £10 to get it. There’s also this version from The Telegraph:

Five years in prison for acting in self-defence

By Alasdair Palmer
(Filed: 09/05/2004)

On the night of August Bank Holiday 2003, at about 11.30, Brett Osborn, a 23-year-old casual labourer, killed Wayne Halling, a stranger who had forced himself into the house where Osborn and four friends were watching television over a drink.

When Halling entered the house he was covered in blood and was in a frenzy. He seemed impervious to pain and was suffering from drug-induced delusions. He had been smashing the windows of other houses in the street with his fists and head, giving himself more than 90 wounds – his wrist was cut to the bone and he had sliced half through one of his toes.

By the time he arrived at 19 Regarth Avenue, Romford – where Osborn was sitting with his friends – he was, as every witness who was interviewed stated, a “terrifying sight”.

He got in because one of Osborn’s companions, Kelly Hinds, had heard the commotion and gone outside. The drug-crazed Halling took her for “Emma”, the girlfriend who, he screamed, had “set him up”. Miss Hinds recalled that he “grabbed me and pushed me against a parked car. I immediately got blood from him on my top. I managed to push him away”.

Halling pursued her back to the house. Miss Hinds managed to get inside but, even with the help of her pregnant sister, Jodie, was unable to close the door against his weight or stop him from pushing his way in. He staggered along the corridor, smearing the walls with blood. Jodie Hinds screamed “He’s in the house! He’s in the house!” and Jay Westbrook, her boyfriend, struggled with him, knocking him down. But he got up again and kept going.

Osborn recalls: “There is blood everywhere, things are flying everywhere, the girls are screaming hysterically. I just don’t know what to do. Then he starts coming towards me.” In fear and confusion, Osborn picked up a steak knife with a 6in serrated blade that he says was on the floor.

He would later tell the police: “I didn’t know what he was going to do to me.” Also, knowing that Jodie Hinds was pregnant, he was terrified of what might happen if she were attacked. “He came towards me, sort of grabbed me,” says Osborn, “and I lunged, and stabbed him that was the only thing I could think to do. It was just the panic. He’s mad, he’s crazy, he’s just smashed up three houses, attacked people, beaten up my friend. I didn’t know what was going to happen. There’s blood all over him. The only thing I could think of was to protect myself and the other people in the house.”

Halling fell to the floor. Police and an ambulance then arrived: there had been several calls to the emergency services, but because of fights in Romford as the pubs closed, officers had been slow to get to the scene.

The wounded intruder refused to let paramedics treat him. He fought them off until he was handcuffed by the police. PC Joanne Allan recalls that she had “never witnessed anything like this in my life. I was terrified, as I had no idea what was happening”. She even considered using her CS spray to control the struggling man, who was lunging and striking out wildly. Sergeant Paul Darham, the second police officer on the scene, agreed that “the scene of blood and a male shouting and behaving irrationally was extremely distressing and frightening”.

The “irrational male” was bundled into the ambulance but died on the way to hospital. Brett Osborn had stabbed him five times. Three of those stab wounds were superficial, barely breaking the skin. But one had punctured his assailant’s lung. It was this injury that killed him.

An autopsy revealed that Halling had taken a massive dose of cocaine – it may have been in the form of “crack” – that night. It was the cocaine that had caused his delusions and made him impervious to pain.

There could be little doubt that Brett Osborn had not planned to kill Halling, or even that he never intended to do so. Halling was unknown to him until he had forced his way into 19 Regarth Avenue. He stabbed him because he feared for his own life and the safety of his friends. Yet, astonishingly, the Crown Prosecution Service decided to prosecute Osborn for murder – a crime that carries a minimum sentence of life imprisonment.

“The law,” explains Harry Potter, the barrister who, with Charles Bott, would defend Osborn, “does not require the intention to kill for a prosecution for murder to succeed. All that is required is an intention to cause serious bodily harm. That intention can be fleeting and momentary. But if it is there in any form at all for just a second – that is, if the blow you struck was deliberate rather than accidental – you can be guilty of murder and spend the rest of your life in prison.

“Moreover,” Mr Potter continues, “while self-defence is a complete defence to a charge of murder, the Court of Appeal has ruled that if the force you use is not judged to have been reasonable – if a jury, that is, decides it was disproportionate – then you are guilty of murder. A conviction for murder automatically triggers the mandatory life sentence. There are no exceptions.”

The legal situation was explained to Osborn by his defence team. Mr Bott and Mr Potter advised him that although they thought it very unlikely that any jury would reject his plea that he had stabbed Halling in self-defence, they could not, in all honesty, claim that it was a certainty. There was a small chance that a jury might decide that his use of the knife was “disproportionate”. The jurors would then be bound, under the law, to convict him of murder.

And remember, they don’t need a unanimous jury decision in the UK anymore.

It was explained to Osborn that he could avoid that risk only if he elected to plead guilty to manslaughter as a result of provocation. He would then probably be sentenced to a maximum of three years. His defence team did not advise him to take that option: they merely set out the alternatives in front of him.
Osborn decided that he could not face the risk of life imprisonment. “You see it in the paper,” Osborn has said, “that bloke Tony Martin who shot the kid who was burgling his house. He went to prison for years. I didn’t want to waste my life because [Halling] burst through the door. Why did he have to ruin my life?”

Tony Martin was convicted of murder after a jury rejected his claim that he had acted in self-defence when he shot dead a burglar who had broken into his isolated farm house. He was sentenced to life imprisonment. The Appeal Court decided to quash his conviction for murder and substitute one for manslaughter on grounds of diminished responsibility. Martin, who was jailed in April 2000, was freed in July 2003.

Osborn chose to plead guilty to manslaughter through provocation. He did not, however, receive a three-year sentence. At his sentencing hearing on April 21 at Woolwich Crown Court, Judge Shirley Anwyl decided that he should serve five years. He is now in Belmarsh Prison.

“We couldn’t believe it,” Denise Osborn, Brett’s mother, told The Telegraph. “Brett has never been violent. He has never been involved in any kind of violent behaviour at all before this. He has a conviction for benefit fraud, but nothing to do with any kind of violence. He was devastated at being the cause of another man’s death. It is a terrible thing for him. He never meant to kill anyone. To treat him like a rapist or someone who coldly sets out to kill another human being is just so unfair and wrong.”

Osborn’s barristers are appealing to get his sentence reduced. They believe that the Court of Appeal’s judgment in the Hastings case – Barry Hastings was convicted of manslaughter after killing an intruder and had his sentence cut from five years to three on appeal – demonstrates that the most Osborn should have received for his plea of manslaughter was three years.

Malcolm Starr, a friend and supporter of Tony Martin, said: “This case shows that it is not so much that the law needs changing but rather that some common sense should be applied. Anyone attacked in their own home should be given the benefit of the doubt whatever the circumstances.

“People have a choice whether to break into someone’s home and frighten them to death. How you would react to that happening to you is something you won’t know until it happens to you.”

The dead man’s family, however, insist that Halling was “unarmed” when he was stabbed. They are wanting Osborn’s sentence increased. They also point to the fact that Osborn, while he handed the police the knife he used to stab Halling on the night of the crime, did not admit to having used it himself immediately. He did so only at a later police interview.

They also say that Osborn’s claim that he stabbed Halling in the course of a struggle is not substantiated by the location of his stab wounds, which were to Halling’s back, not to the front of his body. In his interview with the police, officers asked Osborn if he had “warned” Halling that he had a knife and would stab him if he did not desist. Osborn had to admit that he had not warned him.

“That is just ridiculous,” says Mrs Osborn. “A man behaving like a lunatic, covered in blood, is coming towards him, and my son is supposed calmly to warn him that he might be stabbed if he attacks?”

The determination of the dead man’s family to see Osborn punished may have been what persuaded the CPS to take the decision to prosecute Brett Osborn for murder. “I think the law is contemptible,” says Mrs Osborn. “How can it be right to put my son in jail for defending himself and killing someone by accident? That law has to be changed. There’s got to be a recognition that when you did the kind of thing Brett did, you are not a murderer and you don’t deserve to rot in jail. People have got to realise that it could happen to anyone. It could be you.

“For us, the whole thing has just been a nightmare. I keep hoping I will wake up and Brett will walk in through the door of my home. But he won’t. He’s in prison and he won’t be released for years. It is so wrong.”

I’m certain Tim will point to the fact that Halling was stabbed in the back as indication that it wasn’t self defense. I’m sorry, Tim, but I disagree. If I’m defending others from a blood-drenched maniac, I’m not going to give a shit whether I stab the guy in the back or in the chest. Or if I shoot him, which side the bullets go in. It’s defense of self or others. It’s the legitimate use of violence to stop a crime. It’s justified, and this is part and parcel of what we see coming out of the UK, and what residents there see just as well – just another example of the fact that self defense there is actively discouraged, regardless of the written law. Had Mr. Halling been shot by an armed police officer in the same situation, I have absolutely no doubt that the officer would have been exonerated. Instead, Brett Osborne – convinced by his attorney to plead, just as Satpal Ram was convinced by his attorney to not to claim self defense – gets to spend five years in prison for doing the right thing.

And you know what I didn’t find in all that research? A single case of successful self defense that didn’t involve some sort of weapon.

But I found a lot of crimes committed by bad guys with knives, guns, and even a handgrenade.

Ladies and gentlemen of the jury, I rest my case. What say you?

The Death of Rights

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Francis Porretto wrote an essay a couple of days ago that included these pertinent quotes:

One of the strongest arguments for conservatism about the law — that is, for extreme caution in legal enactments, including the revision of laws by judicial pronouncement — is the Law of Unintended Consequences. A legal change that makes something permitted, compulsory, or prohibited cannot guarantee that the results will be desirable.

—

Property is one of the great binding threads of a free society. All freedom is founded on the institution of private property. No other right — not even the right to life — is safe if property rights are not respected. Yet the thread frays ever closer to breaking completely.

I ran across this story via The England Project a couple of days ago:

Homeowners would be forced to rent out properties that have stood empty for more than six months under proposals unveiled today.

Under an amendment to the housing bill, tabled by Labour backbencher David Kidney MP, councils would be able to take over such properties, restore them to a decent standard and rent them out at an affordable rate. The council could claim its costs back and give the rest to the owner.

Some 750,000 homes are standing empty in the UK at any one time. Mr Kidney’s plans would cover the 300,000 homes left unoccupied for more than six months. He claimed that the government was sympathetic to the plan.

There’s a lot more, but that’s the basics. So, what you see here is government considering passage of laws that violate property rights with no consideration for the Unintended Consequences.

Then today I found this piece by Tim Worstall, an expatriate Brit who happens to own one of those vacant properties back in England. Tim says:

Just had the local council inspecting my place in the UK as well. They’re insisting on various upgrades, some of which are not technically feasible without a complete redesign of the interior. For which I probably won’t be able to get listed buildings consent from the other side of the same council.

Two that really stand out. Interior walls must be 10 cm thick so as to be fireproof. Um, most of Bath is built with 4 inch ashlar : so they are actually proposing that internal walls should be thicker than external. Morons.

—

The one that really got me : after they serve an enforcement order it will be a criminal offense for me to provide less than 5,000 cm2 of work space in the kitchen. Seriously, a criminal offense.

I am, once again, reminded of Ayn Rand’s Atlas Shrugged:

There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on the guilt. Now that’s the system!

Steven Den Beste asked a couple of questions a few days ago, concerning the continuing creep of the EU:

Can Europe avoid this nightmare? Do there exist people there who recognize the peril and who still are willing to work to prevent it?

I responded that certainly there were people who recognized the perils, but there weren’t enough of them to stop the process. This seems to me to be blindingly apparent. This latest violation of English property rights is but one more sad example of the death of rights that is spreading not only in Europe, but here as well, as our putative “servants” in government decide that they own everything – including us – and merely allow us to use it, so long as we pay our taxes and don’t violate their ever-changing rules.

No wonder they want to disarm us.

UPDATE: Ian Murray of The Edge of England’s Sword posts on the proposed legislation. The comments are interesting, too.

An Important Question

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This is not exactly what I expected, but since the good Reverend felt it worth posting, I guess I will. And I’d like all of you out there with whom this question reasonates to post it too.

Earlier this evening I wrote a letter to Rev. Donald Sensing, the minister who runs One Hand Clapping. Here’s the letter in its entirety, though I’ve added hotlinks that I left off the original missive.

—

Rev. Sensing, I’ve read your blog for a while now, off and on, and you strike me as one of the not-so-common deep thinkers in the blogosphere, so I’d like to ask you a question. First, I’d like to preface it with some background information. December 12 you posted a piece you titled Bush Republicanism = Roosevelt Democratism? In it you wrote:

I predict that the Bush administration will be seen by freedom-wishing Americans a generation or two hence as the hinge on the cell door locking up our freedom. When my children are my age, they will not be free in any recognizably traditional American meaning of the word. I’d tell them to emigrate, but there’s nowhere left to go. I am left with nauseating near-conviction that I am a member of the last generation in the history of the world that is minimally truly free.

That same day, Francis Porretto, writing about the Supreme Court decision upholding the Campaign Finance Reform Act wrote:

So long as speech was protected, Americans could claim with some justice that we were in some sense free. If Tuesday’s Supreme Court decision prevails, we will not be able to call ourselves even partly free. We will be a people in chains. Chains forged to protect incumbents from having their records in office publicized in the press as they stand for election. Chains forged to increase the power of the Old Media, granting their journalists and editors the last word on political campaigns. Chains forged by (and for) men to whom “the people” are not only not sovereign, but are a force to be fastened down and made to do as they’re told by those who know better.

A couple of weeks ago, I posted a link to a story in which Supreme Court Justice Antonin Scalia reportedly said in a speech he gave in New Orleans:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

Then last week the 5th Circuit ruled on a case that (in my opinion) broadly widened police powers and greatly weakened the 4th Amendment protection against warrantless search. That prompted me to write an essay I titled “The Road to Hell is paved with Good Intentions” (it’s still up on the front page of my site if you want to read it. I’m not trolling for links here.) [And I wasn’t.] In the course of writing that essay I came across a 9th Circuit decision that made me sit back in shock, and after a couple of days I wrote another essay I titled “Game Over, Man. Game Over.”

In short, I have come to the same conclusion you did in your December 12 piece – that we are ‘the last generation of the minimally truly free.’ My epiphany came when I read that 9th Circuit decision, because until then I still believed that the judicial branch of the government could, if the justices were honorable and honest, still save us from our folly and return us to the intent of the Constitution even after I read Justice Scalia’s quote. My “nauseating near-conviction” wasn’t “near” anymore.

In the late 1700’s it was easy to see who the enemy was – King George. And his agents wore red coats and some wore silly wigs, and all went around with great pomp and circumstance, and we went to war over a level of taxes that citizens today would be ecstatic to pay. But today the enemy is simply “government” and that means, to most people: “us.” The overwhelming majority of the populace, I believe, is ignorant and apathetic. They might sense the loss of their freedoms, dimly, but they don’t know and they don’t want to know. Today I wrote another piece wherein I said that I’m not Don Quixote, I’m 42 and fat and raising the black flag and slitting throats is not my style. To be honest, I don’t even know whose throat to slit when it comes down to it.

So here’s my question: Believing what we believe, is it moral for us to let it happen without standing up and pledging our lives, our fortunes, and our sacred honor to fight it? I have grandchildren. What do I owe them?

—

Rev. Sensing didn’t have an answer. He put up excerpts from my letter and my essays and asked his readership for their ideas. I’m asking you for yours. And I’m asking you to ask other people for theirs. Because I don’t want to be a member of “the last generation in the history of the world that is minimally truly free.”

4/5/04 NOTE: I’m going to leave this up for a couple of days – no new posts, even though there is much (much) out there I’d like to comment on. This is a Blogspot blog. I have no option available to leave this at the top of the page, and that is, as far as I’m concerned, where it needs to be for a while. I’m sending out emails to people who run various sites asking them their opinions, too. Perhaps after a few days I’ll have enough feedback to… I don’t know what, exactly. But I’ll write another piece and tell you what I think. You can count on that.

UPDATE, 4:27PM: C. Dodd Harris responds at Ipse Dixit

UPDATE II, 6:31PM: Mark Phillip Alger of BabyTrollBlog responds. Optimistically!

UPDATE III, 7:40PM: Michael Williams of Master of None asks if we’re actually less free living under a system of myriad laws, but essentially random enforcement. His question echos one asked by Mike Spenis last week.

“Doug,”commenting at Francis Porretto’s site says things are actually turning around.

Update, April 6, 5:05AM: Fûz of WeckUpToThees! suggests that we test our new chains with a little civil disobedience starting Sept. 3 when the Incumbent Protection Campaign Finance Reform laws begin infringing on our free speech rights, and

Donald Crankshaw of Back of the Envelope disagrees with Spoons, saying “Today, those who want judicial restraint have no choice other than the Republicans.”

We’re drifting off topic a bit, but at least we’re discussing the problem.

UPDATE 8:51PM: SayUncle puts up a pithy, link-filled post pointing out government excesses followed by outrages illustrating the infringement of our individual rights, mostly in the name of “public safety.” Which reminds me of another Mencken quote:

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”

Well, perhaps not all of them, but certainly most.

UPDATE 4/7, 4:28PM: Dale of Mostly Cajun took my question and expanded it to “How free are we?”

Good question. I’ll have a new post up this evening.

UPDATE 4/8 9:43AM: Heartless Libertarian thinks Civil Disobedience is a viable path.

“Game Over, Man. Game Over.”

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I’ve had this essay rolling around the dark corners of my subconscious for a few days, ever since I found and read the U.S. v. Stewart decision. I credit Mike Spenis of Feces Flinging Monkey for the inspiration that let it out, because in our short discussion of the recent 5th Circuit U.S. v. Gould decision, (see my piece below) he said what I had been thinking, but could not put into words.

Personally, I think that the (unfortunate) bottom line is that the 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.

We certainly agree on that. As I told Mike, I think the difference between his position and mine is that he believes that such review occurs, and I understand it to be so rare as to be remarkable.

As I said, this essay was spawned by my reading of U.S. v. Stewart – a 9th Circuit decision that proclaimed that the Federal Government could not, through its powers granted under the Commerce Clause of the Constitution, prohibit a citizen from possessing a machinegun he manufactured himself, even if some of the parts were purchased across state lines. Surely, you say, this is a victory for the frothing-at-the-mouth wing of gun-rights advocates? Well, yeah, sort of. It’s a short decision, running only twenty pages, and it’s written by Justice Alex Kozinski, one of the most eloquent judges on a bench anywhere. It’s eminently readable. So what’s my problem with it? It reinforces my belief that judicial review – the “willingness to periodically re-examine the law” is a forlorn hope. It illustrates that bad precedent will live on, and be expanded, and that nothing short of a judicial miracle will be required to overturn what prior courts have decreed, so long as judges use their power to constitutionalize their personal preferences.

Throughout our relatively short history, that’s what the overwhelming majority of judges have done. As I illustrated in The Blog that Ate Poughkeepsie, for example, the Supreme Court ruled in 1856 – 7 to 2 – in Dred Scott v. Sanford that blacks in this country, free or slave, could not be “citizens,” because citizenship

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.

Horribly wrong, obviously flawed. But we overturned that, you argue. Well, yes, we did. After we fought the bloodiest war in our history in no small part to determine just who were and weren’t citizens, we passed two Constitutional amendments. The 13th to define legally what a “citizen” was, and the 14th to ensure that the fundamental rights of those citizens – which Chief Justice Taney in Dred Scott so accurately listed – would be honored and respected by our legal system. (Go back. Read the list again.)

But immediately after that the Supreme Court in 1873 negated the expressed intent of the 14th Amendment with its decision in the Slaughterhouse Cases, and then the Court in its 1875 decision in U.S. v Cruikshank used the precedent of Slaughterhouse to eviscerate the 14th Amendment and drive the first nail into the coffin of the Second Amendment. Both decisions can be laid at the feet of judges using their power to constitutionalize their personal preferences, which in this case can be boiled down to “keep the darkies down.” (In the name of public safety, you realize.) (Yes, that was a sarcastic comment.)

From then to the present the judicial system has carried on this way, bending and distorting the clear intent of the Constitution and the Bill of Rights in order to meet the preferences of the black-robed arbiters tasked to apply the law within the intent of that very Constitution. There were, of course, some victories, and there were some judges who understood their jobs and did them to the best of their impartial ability. Louis Brandeis, for example, served on the Supreme Court from 1919 to 1923, and more than that, he often served as its conscience. But he often did so in his dissents, not in majority opinions. It was Brandeis in U.S. v. Olmstead who chastised the majority, saying:

Time and again this court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it.

—

The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

—

Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants’ objections to the evidence obtained by wire tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Olmstead was a case in which the government used wire taps to gather evidence against people it suspected were involved in the illegal sale of alcohol during Prohibition.

Again, for reasons of “public safety” the government found it reasonable to violate the protections laid down by the Constitution. Just a little. With good reason. With benign intent.

Almost from the day of ratification of the Constitution until today, the legal encroachment on our Constitutional rights, aided and abetted by the Judicial Branch generally under the guise of “public safety,” has continued almost unabated. Prohibition. Communism. Vietnam War protesters. The War on Drugs. And now the War on Terror. And it’s accelerated. To fight prostitution, cities confiscate the cars of men soliciting sex, sell them and keep the proceeds. Cities misuse eminent domain to take the property of their citizens so that businesses that will generate high tax revenues can build on it. Police are allowed to seize cash and property from people suspected to be involved in the drug trade, and keep it – even if the people they take it from are never charged, much less convicted. It’s up to the victim of the seizure to prove the property isn’t related to drug trafficking. The examples are nearly endless.

So why did the Stewart decision trigger this essay? Because Justice Kozinski wrote it. and Justice Kozinski also wrote a dissent to the decision denying a re-hearing of Silveira. In the Silveira dissent Justice Kozinski wrote:

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 9th Circuit in the original appeal claimed under precedent of U.S. v. Miller and the 9th Circuit’s own (out to lunch) interpretation of it in Hickman v. Block, that there is no individual right to arms. In the original Silveira decision, the Court made note of Justice Kozinski’s objection to the Hickman decision:

In Hickman, we held that an individual could not bring a Second Amendment challenge to a California law which requires that a permit be obtained in order to carry a concealed weapon, and, as noted in the text, unambiguously adopted the view that the Second Amendment establishes a collective right. Nevertheless, just six days after the issuance of that decision, Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary….

So, what was it about Stewart? This is what Kozinski wrote in that decision:

Finally, Stewart argues that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his former felony conviction – as charged in count one of Stewart’s indictment. We have held that the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart’s Second Amendment argument must therefore fail.

Kozinski has protested long and well that an honest reading of Miller – used as precedent in Hickman and most recently in Silveira – cannot support the position that the Second Amendment doesn’t protect an individual right. Yet he used Silveira as precedent in Stewart to deny that the Second Amendment protects an individual right.

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.

As Hudson said in the movie Aliens, “Game over, man. Game over.”

UPDATE: Publicola reports that the NRA’s CATO Institute’s challenge to D.C.’s firearm ban has been defeated, and links to the decision. Here’s my condensation of the 15 pages: “Sixty-five years of precedent say that there is no individual right to arms. The 5th Circuit was wrong. Suit dismissed. Go away, boy, you bother me.” Once again, the NRA’s “incrementalist” approach is just as successful as the Silveira “Charge the Gates!” approach. The courts will not save us.

UPDATE 4/6: The 9th Circuit has spoken again. An appeal to the 9th for an en banc rehearing of Nordyke v. King, another 2nd Amendment case, has been denied under the Hickman precedent. Justice Kozinski concurred with the denial citing “prudential considerations” against rehearing a 2nd Amendment case “so soon” after Silveira, but there were five other Justices who dissented. Justice Gould wrote a detailed 20+ page dissent, joined by O’Scannlain, Kleinfeld, Tallman, and Bea, in which he strongly supports the 5th Circuit’s interpretation of the 2nd Amendment as protecting an individual right in Emerson. The dissent is here, though the server appears to not be working at the moment.

My only problem with the dissent is Justice Gould’s repeated referral to the 2nd Amendment as granting an individual right to arms, rather than protecting a pre-existing right. The 1st Amendment doesn’t grant the right of free speech.

UPDATE 3:40PM: Publicola comments on this piece and the Nordyke dissents.

UPDATE 4/7 7:12AM: I edited the piece a tiny bit. Dred Scott v. Sanford was not a unanimous decision, it was 7-2. Interestingly, nobody called me on it, which means that nobody read or even skimmed the decision. I just checked it this morning because of a niggling doubt and found that there were two, Justices McLean and Curtis, who dissented.

The Road to Hell is Paved with Good Intentions

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A recent 5th Circuit Court of Appeals decision has hit the radar of those of us concerned over the ever-expanding powers of government in (to us) obvious violation of the Constitutional protections written in to limit that power. I first ran across this latest slip down the slippery slope over at Say Uncle, but the Geek with a .45 and John Donovan have also weighed in. What all three of these bloggers have commented on was this news story from New Orleans, home of the 5th Circuit Court.

Court Opens Door To Searches Without Warrants

It’s a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will provide safety to officers, but others argue it’s a privilege that could be abused.
The decision was made by the New Orleans-based 5th Circuit Court of Appeals. Two dissenting judges called it the “road to Hell.”

The ruiling stems from a lawsuit filed in Denham Springs in 2000.

New Orleans Police Department spokesman Capt. Marlon Defillo said the new power will go into effect immediately and won’t be abused.

“We have to have a legitimate problem to be there in the first place, and if we don’t, we can’t conduct the search,” Defillo said.

But former U.S. Attorney Julian Murray has big problems with the ruling.

“I think it goes way too far,” Murray said, noting that the searches can be performed if an officer fears for his safety — a subjective condition.

Defillo said he doesn’t envision any problems in New Orleans, but if there are, they will be handled.

“There are checks and balances to make sure the criminal justce (sic) system works in an effective manor,” (sic) Defillo said.

Our reaction to this story is understandable, I think. We’re supposed to trust Capt. Defillo’s word that “the power won’t be abused” though he says “(t)here are checks and balances to make sure the criminal justice system works in an effective manor.” (I think the word “manor” might be a highly appropriate freudian slip.) Yes, we’re supposed to trust our overlords who just removed one of those “checks and balances” – checks and balances that aren’t there to ensure the criminal justice system works effectively, but there to ensure that the rights of the individual are protected against government abuse. And these words come from a spokesman for a police department with a serious record of corruption. This is not encouraging.

I’ve just begun reading Professor Randy Barnett’s latest book, Restoring the Lost Constitution, which opens with the following:

Growing up, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner’s argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.

Until I took Constitutional Law at Harvard Law School. The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First it was the Necessary and Proper Clause in McCulloch v. Maryland (1819), then the Commerce Clause (a bit) in Gibbons v. Ogden (1824), then the Privileges or Immunities Clause of the Fourteenth Amendment in The Slaughterhouse Cases (1873), the the Commerce Clause (this time in earnest) in Wickard v. Filburn (1942), and the Ninth Amendment in United Public Workers v. Mitchell (1947).

Nor were these landmark decisions isolated cases. In countless other opinions, the Supreme Court justices affirmed they meant it when they said the Constitution did not mean what it apparently said.

Now, bear in mind IANAL (I Am Not A Lawyer), but I’ve read a LOT of case law over the last ten years or so in my study of the legal history of the right to arms and other rights of the individual, and I’ve found precisely what Prof. Barnett describes here – a slow but steady erosion of the power-limiting restrictions of the Constitution until the Constitution really doesn’t mean anything any longer as far as a restriction on government power. Just two weeks ago my opinion was validated by Justice Antonin Scalia, who said during a speech in New Orleans:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

Knowing what I know about the accuracy of the press, I decided that I should once again go straight to the source, and read the decision to determine for myself just how bad it was. The case is U.S. v. Gould, and the decision was published last Wednesday. It was an en banc re-hearing by fifteen justices, including justices Garwood and DeMoss, who found in U.S. v. Emerson that the Second Amendment protected a right of the individual – the first rollback of any kind regarding judicial protection of the right to arms in any Federal court since 1939.

The basics of the case are relatively simple:

Louisiana deputy sheriffs, having received on October 17,2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 16 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.

Straightforward, no? The cops caught a known violent felon with some guns who had threatened to kill some judges. Score one for the good guys, right? Letting this guy go would have, once again, proven that the courts are “soft on crime,” but they did the right thing and now this asshole is behind bars where he ought to be. Right?

The decision goes on some 32 pages, citing case after case of precedent before concluding:

We hold that a protective sweep as authorized by Buie (Maryland v. Buie (1990)) need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid. The district court’s suppression order is accordingly REVERSED.

This was not a unanimous decision, obviously. No, it was 11-4. There are 30 pages of dissent, and Justice DeMoss’s (who was joined by Justice Smith) is the most eloquent and detailed. It starts at page 44 of the opinion, and I strongly recommend that everyone interested in individual right read the whole thing to see the mechanism of incrementalism thoughtfully dissected. Excerpts:

This case presents the difficult issues of: (1) whether the protective sweep exception defined by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called “clearly” legitimate “knock and talk” police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order.

I.

The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Further, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a homewithout a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78 (1971)). Additionally, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313 (1972). Accordingly, our law dictates that unless some exception applies, the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional.

Justice DeMoss goes on for a while documenting his position in detail. On to error number two:

In satisfying its first requirement of this newly created exception to the protections afforded by the Fourth Amendment, i.e., that the officers were legally present in the mobile home, the majority relies on the “knock and talk” police investigatory tactic mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The majority refers to this practice as being “clearly… recognized as legitimate.” The “knock and talk” tactic is hardly well-established law. The Fifth Circuit case establishing the concept of “knock and talk” merely states that “[t]his investigative tactic is not inherently unreasonable.” Jones, 239 F.3d at 720.

Use of the “knock and talk” tactic may be reasonable in some cases, e.g., police may follow-up on a lead and approach a citizen, seeking the citizen’s cooperation. In this case, however, the officers conducted an intrusive search of a bedroom with neither consent, nor search warrant, nor arrest warrant, nor any exigent circumstances. The majority has created an exception that permits an officer to ask for permission to enter a home from a third party who may have authority to consent to only part of the home but not all of the home and then immediately contend that he, the officer, is so apprehensive about his own safety that he must conduct a protective sweep of areas where he has no consent to be, when the officer had no obligation or duty to enter the home in the first place. This new exception is really a “knock, enter, maybe talk, and search” police investigatory tactic, all conducted without a warrant, and resulting in an end-run around the protections afforded by the Fourth Amendment.

In addition, the majority has not stated why their new exception is necessary or why we should not find that the officers created a situation that resulted in a Fourth Amendment violation when they in fact had many other permissible ways to pursue their investigation, i.e., seeking a search warrant based on the informant’s tip. The majority does address the issue of exigent circumstances that can sometimes make a warrantless search permissible. This search, however, as the majority agrees, is not based on any exigency.

Again, justice DeMoss goes on to make his case eloquently. Finally, error number three:

We decided to review en banc the Gould case to determine: (1) whether the rule established in Wilson that a protective sweep of a home was limited to an arrest situation, as defined by the Supreme Court in Buie, was correct; and (2) if the protective sweep exception to the search warrant requirement is not limited as Wilson and Buie indicate, whether the warrantless search of Gould’s bedroom was reasonable.

The majority characterizes the rule outlined in Wilson as a “bright-line” rule; Wilson, however, directly follows the precise language used by the Supreme Court in its definition of the protective sweep exception in Buie. The protective sweep exception as outlined in Buie requires the following three elements. First, the officers must be executing an arrest warrant in a suspect’s home. See generally Buie, 494 U.S. 325 (mentioning over 65 times the concept of arrest in a home when defining a protective sweep). Second, the officers must perceive some danger from another person or persons. Id. at 332-36 (indicating that not every in-home arrest will justify a protective sweep and listing several factors that are used to validate the reasonableness of the perceived danger, such as the nature of the crime for which the arrest is being executed, the likely presence of cohorts, and the time and place of arrest). Third, the search may only be a quick and limited cursory inspection of those places another person might be hiding. Id. at 335-36. Here, the majority has ignored the first two elements and only addressed the third. (Which in my reading of many cases tends to be true. That and the – sometimes apparently deliberate – misreading of cases used as precedent.)

Of course, there is good reason for the limited definition as outlined in Buie and tracked by this Court in Wilson. Such a definition avoids the quagmire that the majority finds itself in after rejecting the language in Buie and Wilson. The majority is forced to fashion a new exception with alternative elements that are vague; and as such the new exception swallows the rule that a warrant is generally required for an in-home search.

—

(T)he element that the officers must be executing an arrest warrant in a home in order to conduct a protective sweep cannot be so easily disposed of and an alternative substituted for it. As the Buie court noted:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on the-street or roadside investigatory encounter…. A protective sweep… occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s “turf.”

In place of this element the majority substitutes the following element: the police presence in the home must be for a legitimate law enforcement purpose. The majority’s element is an inadequate substitution. There are many legitimate law enforcement purposes that may permit officers to do something short of conducting a warrantless search, e.g., enter a home for the purpose of talking to the person who gave the officers consent and had authority to consent to the entry. Such a legitimate purpose does not somehow give the officer carte blanche to then search the house. In the protective sweep situation, as defined by Buie, the officers must have more than a legitimate purpose to be in the home, the officers must have a compelling reason, i.e., be in the house under the obligation to execute an arrest warrant. This requirement is, in fact, the essence of the Buie holding and this requirement is a limiting factor on the officers’ conduct that is missing from the majority’s opinion.

So, once again we have an example of what 9th Circuit Justice Alex Kozinski described in his dissent to the decision not to rehear 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.

They’re obviously able to do the same thing with prior case law, as well.

But here’s the kicker in the dissent that really got my attention:

Finally, in my view this case should have never been prosecuted in federal court. The original criminal conduct which precipitated the arrest was strictly local in nature: one Louisiana resident (Forehand) reported to the sheriff of one Louisiana parish (and not to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that another Louisiana resident (Gould) had made oral threats to kill two Louisiana judges (not federal judges) and some other Louisiana residents (not residents of another state) apparently because of a proceeding of some sort in a Louisiana court (not a federal court) relating to a state law claim (not a federal question). If the admonitions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) about drawing a line between local and national interests have any meaning at all, then this criminal investigation would have undoubtedly fallen on the local side of the line. All of the law enforcement actors in this case were state officers.

Furthermore, I think it would be ridiculous to conclude that the firearms found as a result of a warrantless search in Gould’s closets in Gould’s bedroom in Gould’s trailer home in the woods of rural Louisiana had any effect whatsoever, much less a substantial effect, on interstate commerce as Lopez and Morrison require for a federal prosecution.

The events which precipitated this case occurred on October 17, 2000. The federal indictment in this case was not handed down until August 9, 2001, more than 9 months later, which clearly indicates that the federal indictment was an afterthought.

—

…I would suggest that the following conclusions should be readily drawn:

A.

The dismissal on March 5, 2001, of the state solicitation for murder charge for “no probable cause” pulls the rug out from under the government’s assertion that Gould’s “threats to kill” were sufficiently real and immediate to justify talking with him even without any warrant; and

B.

The decision of the state court on July 25, 2001, to grant Gould’s motion to suppress pulls the rug out from under the subsequent federal indictment based on identical facts; and should have been disclosed to the federal district court addressing the federal suppression hearing. Had it been, the federal district court might well have based its decision on the alternate ground that the state had already ruled the seizure of the firearms was unconstitutional.

In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy – which he defined as: “the right to be let alone” – “the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand, and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that “the road to hell is paved with good intentions.” In my judgment, that is precisely where the majority opinion wants to put us – by unhooking the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.

It has been a continuous theme on this blog that I believe that, through a slow but steady incrementalist approach, we have been stripped of the rights we as individuals are supposed to have under the Constitution as it was originally framed. This is the “slippery slope” argument, perhaps now the “road to hell” argument, and it is not limited to just the right to arms. Decisions like this one are but larger blips on a radar screen that is completely fuzzy with the chaff of earlier, less alarming but prerequisite decisions. We’ve had over 200 years of case law to fold, twist, spindle and mutilate to get where we are today.

I cannot put it more plainly – our freedoms are disappearing, and they are doing so through the conscious and unconscious machinations of all three branches of government, and in the majority with “good intention” on the part of the lawmakers and the judges who interpret those laws. Justice Brandeis also said in Olmstead,

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

We are frogs in the pot, but the mechanism that turns up the heat is human nature – the desire for immediate safety and security, without regard to future effect. In this case, a known violent felon was found to be in possession of firearms after he allegedly threatened to kill. He’s off the street, we’re all safer. But we’re all less free than we were on March 23.

In University of Texas Law professor Sanford Levinson’s Yale Law Journal article The Embarrassing Second Amendment he wrote:

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good.

Yes, our Constitution was written by men with an inherent distrust of the State, and it was written as a mechanism to limit the power of the State in favor of the rights of individuals, but that mechanism has failed. As Professor Barnett puts it in the introduction to Restoring the Lost Constitution:

Had judges done their job, this book would not need to be written. Since adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
—
Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they all had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers.

Captain Marlon Defillo of the NOPD tells us not to worry, the new police power to search without a warrant won’t be misused. Trust us, we’re from the government, and we’re here to help you. If you haven’t done anything wrong, you have nothing to fear. It’s for your safety and security that we take another bit of your rights away. You’re not responsible enough for them, anyway.

Let me conclude with another bit from Judge Kozinski’s dissent in Silveira:

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.

The courts long ago lost their “courage to oppose” if they ever really generally recognized their responsibility to. They’ve been aiding and abetting the expansion of government power at the expense of the Constitution since shortly after ratification, and if they can eventually no longer find anyone to enforce their decrees, it might be because of decisions like the 5th Circuit’s Gould finding of last week. We are, as time goes on, less and less a free people, and we are less free because we allow our government to expand its power. We’re too busy living our lives, and we’re too human in our desire to be safe and secure. Freedom is dangerous. Freedom is risky. And freedom must be paid for, either through “eternal vigilance,” as Jefferson warned, or through conflict, as Robert Heinlein wrote in his novel Starship Troopers,

As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is never free of cost.

We’ve abandoned our vigilance. Our islands of liberty are constantly shrinking in the ever-rising sea of governmental powers. In Prof. Barnett’s book there is supposedly a way to restore our “presumption of liberty” without armed conflict. I hope there is. Because without a way to reverse this trend peacefully, the only choices left to us are submission or armed revolt. I don’t know yet if we’ve proceeded down the slope to the point of no return, and I don’t think we can know until we get that empty feeling in the pits of our stomachs that free-fall induces.

But by then, the road to hell will have reached its destination.

Stick a Fork in England. They’re Done

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We locked you up in jail for 25 years and you were innocent all along? That’ll be £80,000 please

Blunkett charges miscarriage of justice victims ‘food and lodgings’
By Neil Mackay, Home Affairs Editor 3/14/04

WHAT do you give someone who’s been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn’t commit?

An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons.

On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than £3000 (Almost $5,400) for every year they spent in jail while wrongly convicted. The logic is that the innocent man shouldn’t have been in prison eating free porridge and sleeping for nothing under regulation grey blankets.

Blunkett’s fight has been described as “outrageous”, “morally repugnant” and the “sickest of sick jokes”, but his spokesmen in the Home Office say it’s a completely “reasonable course of action” as the innocent men and women would have spent the money anyway on food and lodgings if they weren’t in prison. The government deems the claw-back ‘Saved Living Expenses’.

And this isn’t a new idea. They’ve done something similar before!

Paddy Hill was one of the Birmingham Six. He spent 16 years behind bars for the 1974 Birmingham pub bombings by the IRA. Hill now lives on a farm with his wife and children near Beith in Scotland. He has been charged £50,000 (That’s just shy of $90k) for living expenses by the Home Office.

It wasn’t until two years ago that Hill was finally awarded £960,000 in compensation. However, during the years since his release, while waiting for the pay-out, the government had given him advances of around £300,000. When his compensation came through, the £300,000 was taken back along with interest on the interim payments charged at 23% – that cost him a further £70,000.

One hand giveth, another taketh away.

“The whole system is absurd,” Hill said. “I’m so angry about what has happened to me. I try and tell people about being charged for bed and board in jail and they can’t believe it.

“When I left prison I was given no training for freedom – no counselling or psychological preparation. Yet the guilty get that when they are released. To charge me for the food I ate and the cell I slept in is almost as big an injustice as fitting me up in the first place.

Hell, when they released serial criminal Brandon Fearon, they gave him money so he could sue Tony Martin, the farmer who shot him when Fearon tried to burglarize Martin’s home.

“While I was in prison, my family lost their home, yet they get no compensation. But the state wants its money back. It’s like being kicked in the head when someone has beat you already.

“I have to put up with this, yet there has not been one police officer convicted of fitting people up. The Home Office had no shortage of money to keep me in jail or to run a charade of a trial.

“But they had enough money to frame me. Nevertheless, when it comes to paying out compensation for ruining my life they happily rip me to shreds.”

Hill is not leading the legal action against the government – instead he has handed the baton to another high-profile victim of miscarriage of justice: Mike O’Brien.

O’Brien spent 10 years in jail wrongly convicted of killing a Cardiff newsagent. His baby daughter died while he was in prison and he was charged £37,500 by the Home Office for his time behind bars.

Hill said he cannot lead the legal fight as the Birmingham Six have fought every legal action together, but now three of them are over 70 and Hill believes it is too much to ask them to join him in taking on the government yet again.

He said he was also worried about the compensation payments for the other members of the Birmingham Six being affected if they joined him in court against the government.

“The establishment hate me and people like me as we proved them wrong,” he said. “They either want to ignore us or hurt us.”

O’Brien took the Home Office to court last March and won, but Blunkett appealed the decision. On Tuesday, the rights and wrongs of the government policy will be decided at the Royal Courts.

I’m not taking bets on that decision.

O’Brien said: “Morally, the position of the government is just outrageous. It shows total contempt for the victims of miscarriages of justice. It makes me livid.

“I really believe if we win the appeal this week, the government is evil enough to take me to the House of Lords. They are trying to break us. I really think this is personal as far as the government is concerned.

“A government really can’t get much worse than this. But I am confident that we will win as the law and morality are on our side.”

Vincent Hickey, one of the Bridgewater Four who was wrongly convicted for killing a paperboy, was charged £60,000 for the 17 years he spent in jail. He said: “If I had known this I would have stayed on hunger-strike longer, that way I would have had a smaller bill.”

John McManus, of the Scottish Miscarriage of Justice Organisation, said: “This is reprehensible. How can we call ourselves a democratic, civilised society when our government is acting like this?

How can you call yourselves a democratic, civilized society when you deny people the right to defend themselves?

“The government seems intent on punishing innocent people. The state wants to be paid for making a mistake. It’s hard to believe someone actually thought this policy up. If you tell a child about this they will think it insane.

“Only a sick mind could have invented this policy, yet the government is fighting to retain the right to act like this. It is cruelty with intent. They seem to want to punish people for having the audacity to be innocent.”

The SNP’s shadow justice minister, Nicola Sturgeon, said: “This is outrageous. It is another assault by Blunkett on the rule of law and on civil liberties. These people didn’t chose to go to prison. They were wrongly convicted, and to charge them for it beggars belief.”

The Home Office said an “independent assessor appointed by the Home Secretary takes into acccount the range of costs the prisoner might have incurred had they not been imprisoned”. The spokes man said the assessor was “right” to do this, adding: “Morally, this is reasonable and appropriate.”

I suggest that, if the Home Office really believes this then their “moral compass” is spinning wildly.

‘I was a hostage, now they are billing me’

ROBERT Brown was just a 19-year-old from Glasgow when he was jailed for life for murdering a woman called Annie Walsh in Manchester in 1977. He served 25 years before he was finally freed in 2002, when the courts ruled him innocent of the crime.

He is now facing a bill of around £80,000 for the living expenses he cost the state. For Brown, it is the final straw. An interim payment he was given pending his full compensation offer is exhausted; his mother recently died; his relationship with his girlfriend has fallen apart and he is facing eviction from his home following a mix-up over benefits.

“I feel like ending my life,” he says. “I’ve tried to maintain my dignity, but the state has treated me with nothing but contempt – now they are asking me for money for my bed and board in jail.

“I never contemplated suicide once while I was in prison, but it’s different on the outside. I have received no counselling or support. Society is treating me like something you’d wipe off the bottom of your shoes, but I’m an innocent man and a victim of a terrible injustice.

“It’s horrific. I’ve been out of jail for 14 months and in that time the state has put me through a war of attrition that it never needed to conduct. I feel my life is disintegrating around me.

“Making me pay for my bed and board is abhorrent. I was arrested, fitted up and held hostage for 25 years and now they are going to charge me for being kept as their prisoner against my will.

“Can you think of a more disgusting way to abuse someone? I really feel that my heart is truly and finally broken.”

First disarm them, then enslave them, right?

Speaking of Teddy Kennedy…

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Let’s fisk his little rant from his Senate testimony on S. 1805 concerning armor-piercing ammo:

As we all know too well, the debate about gun violence has often been aggressive and polarizing with anti-gun violence advocates on one side of the debate, pro-gun advocates on the other. There are deep divisions in the country on the issue of gun safety, and the current debate on the gun immunity bill has thus far only served to highlight those divisions.

I believe, however, that there are still some principles on which we can all agree. One principle is that we should do everything we can to protect the lives and safety of police officers who are working to protect our streets, schools, and communities.

The amendment I am offering today is intended to close the existing loopholes in the Federal law that bans cop-killer bullets. Police officers depend on body armor for their lives. Body armor has saved thousands of police officers from death or serious injury by firearm assault. Most police officers who serve large jurisdictions wear armor at all times when on duty. Nevertheless, even with body armor, too many police officers remain vulnerable to gun violence.

According to the Federal Bureau of Investigation, every year between 50 and 80 police officers are feloniously killed in the line of duty. In 2002, firearms were used in 51 of the 56 murders of police officers. In those shootings, 34 of the officers were wearing body armor at the time of their deaths. From 1992 to 2002, at least 20 police officers were killed after bullets penetrated their armor vests and entered their upper torso.

Some gun organizations have argued that cop-killer bullets are a myth. The families of these slain police officers know better. In fact, we know that armor-piercing ammunition is not a myth because it is openly and notoriously marketed and sold by gun dealers.

I direct my colleagues’ attention to the Web site of Hi-Vel, Incorporated, a self-described exotic products distributor and manufacturer in Delta, UT. You can access its online catalog on the Internet right now. Hi-Vel’s catalog lists an entry for armor-piercing ammunition. On that page you will find a listing for armor-piercing bullets that can penetrate metal objects. The bullets are available in packages of 10 for $9.95 each. Hi-Vel carries armor-piercing bullets for both the .223 caliber rifles such as the Bushmaster sniper rifle used in the Washington area attacks in October 2002, and the 7.62 caliber assault weapons. Over the past 10 years, these two caliber weapons were responsible for the deaths of 14 of the 20 law enforcement officers killed by ammunition that penetrated body armor.

Check the sleight-of-hand here. Hi-Vel does indeed sell “armor piercing” ammunition designed to penetrate steel. But police vests aren’t made of steel. They are made of kevlar fiber. The police wear relatively soft, relatively flexible National Institute of Justice Class II, IIA or IIIA rated vests at best. These vests are designed to stop 9mm, .357 Magnum, and .44 Magnum handgun rounds, respectively. In order to stop any centerfire rifle round, “armor piercing” or not, would require moving up to the heavy, rigid Class III and Class IV vests worn by our military personnel. You’ll remember the Class IV vests from the “embedded” journalists during the invasion of Iraq. They were those very heavy vests with the splatter-deflecting collars that looked so uncomfortable, like this one:

But Senator Kennedy, like all gun control zealots, wants to convince you that it requires special “armor-piercing” ammunition to penetrate a soft Class II, IIA or IIIA police vest. He wants you to believe that the officers killed with .223 and 7.62mm so-called “assault weapons” were using ammunition like Hi-Vel’s ammo, and not off the shelf standard hunting ammo or even more common military surplus full metal jacket rounds. He expects his listeners to be ignorant, and to believe what he doesn’t say.

In a recent report, the ATF identified three, .223 and the 7.62 caliber rifles, as the ones most frequently encountered by police officers. These high-capacity rifles, the ATF wrote, pose an enhanced threat to law enforcement, in part because of their ability to expel particles at velocities that are capable of penetrating the type of soft body armor typically worn by law enforcement officers.

“Particles”? I think the Senator meant “projectiles.” What he doesn’t say is that any centerfire rifle “expels particles” at velocities high enough to penetrate soft body armor. That’s why the National Institute of Justice classifies vests as it does. But the facts are just too inconvenient for the Senator.

Here’s where he really goes off into the twilight zone, though:

Another rifle caliber, the 30.30 caliber, was responsible for penetrating three officers’ armor and killing them in 1993, 1996, and 2002. This ammunition is also capable of puncturing light-armored vehicles, ballistic or armored glass, armored limousines, even a 600-pound safe with 600 pounds of safe armor plating.

Say WHAT?

The .30-30 was introduced in 1895 as the .30 Winchester Centerfire, chambered in the “high-capacity assault weapon” of its day, the Winchester 1894 lever-action rifle. This is a ’94 Winchester:

Scary, isn’t it? It was one of the first commercial cartridges loaded with then-new smokeless powder, but it was stuck with the cartridge naming convention of the era – bullet diameter and black powder load equivalent: A .30 caliber bullet and 30 grains of black powder. According to my copy of Hodgdon’s No. 25 reloading manual, the standard .30-30 load pushes a 150 grain bullet at about 2200 feet per second out of a rifle with a 24″ barrel. The bullet used in the .30-30 normally has a blunt, flat tip because of the tubular magazine normally used in lever-action rifles. Yet Teddy Kennedy wants us to believe that this magical round – responsible for the deaths of three officers – is capable of penetrating “600 pounds of safe armor plating.” Whatever the hell that means. Sounds impressive, doesn’t it? Here’s some comparisons:

The .30-30, 150 grain bullet, 2200 feet per second.

The .308 Winchester (7.62NATO), 150 grain bullet, 2600 feet per second

The .30-06, 150 grain bullet, 2800 feet per second.

The .300 Winchester Magnum, 150 grain bullet, 3100 feet per second.

The .300 Remington UltraMag, 150 grain bullet, 3400 feet per second.

.30-378 Weatherby, 150 grain bullet, 3500 feet per second

Here’s a picture to give you some idea of the cartridges.

From right to left, smallest to largest: .308 Winchester, .30-06 Springfield, .300 Winchester Magnum, .300 Remington UltraMag, and the .30-378 Weatherby.

Remember, the lowly .30-30 is fast enough to penetrate a Class IIIA vest.

Yet Senator Kennedy doesn’t want people to think that he’s interested in banning hunting ammunition, just ammunition that can penetrate a soft police vest.

It is outrageous and unconscionable that such ammunition continues to be sold in the United States of America. Armor-piercing ammunition for rifles and assault weapons is virtually unregulated in the United States.

“Assault weapons” like the ’94 Winchester.

A Federal license is not required to sell such ammunition unless firearms are sold as well. Anyone over the age of 18 may purchase this ammunition without a background check. There is no Federal minimum age of possession. Purchases may be made over the counter, by mail order, by fax, by Internet, and there is no Federal requirement that dealers retain sales records.

Note all these things that the Senator wants: Background checks for ammunition sales. A minimum age for possession of rifle ammunition. Dealer record keeping for ammunition sales – a record keeping requirement that would convince most retailers that it was simply too much trouble to sell ammo.

And now he goes off on the current boogeyman, the evil .50BMG rifle:

In 1999, investigators for the General Accounting Office went undercover to assess the availability of .50 caliber armor-piercing ammunition. Purchasing cop-killer bullets, it turned out, is only slightly more difficult than buying a lottery ticket or a gallon of milk. Dealers in Delaware, Pennsylvania, and West Virginia informed the investigators that the purchase of these kinds of ammunition is subject to no Federal, State, or local restrictions. Dealers in Alaska, Nebraska, and Oregon who advertised over the Internet told an undercover agent that he could buy the ammunition in a matter of minutes, even after he said he wanted the bullets shipped to Washington, DC, and needed them to pierce an armored limousine or theoretically take down a helicopter. Talk about homeland security.

The .50 BMG round, by virtue of its weight and velocity (750 grains at 2800 fps) will penetrate any body armor, and even if it didn’t, that much kinetic energy would most probably kill a human being from mere shock. Kennedy has pulled a sleight-of-hand here – he’s not talking about protecting officers in soft body armor any more, but he hasn’t bothered to tell anybody.

In a single year, over 100,000 rounds of military surplus armor-piercing ammunition were sold to civilians in the United States.

And there were how many officers shot through their vests and killed? Twenty, between 1992 and 2002, according to the Senator. That’s two per year, versus one million rounds of “armor piercing” ammunition sold. And not one of those officers was killed with an “armor piercing” round. They were killed with standard, everyday centerfire rifle ammo.

And now he goes off on Smith & Wesson’s horrible new .500 S&W Magnum, the new weapon designed, in his eyes, specifically to kill cops:

In addition, the gun manufacturer, Smith & Wesson, recently introduced a powerful new revolver, the .500 magnum, 4-1/2 pounds, 15 inches long, that clearly has the capability of piercing body armor using ammunition allowed under the current law.

Well, it is bigger than the .44 Magnum, I’ll give him that.

The publication, Gun Week, reviewed the new weapon with enthusiasm: “Behold the magic, feel the power,” it wrote.

Many of our leaders will buy the Smith & Wesson .500 Magnum for the same reason that Edmund Hillary climbed Mt. Everest: Because it is there.

Note the ad doesn’t say:

Many of our leaders will buy the Smith & Wesson .500 Magnum because it will penetrate body armor and kill cops.

Teddy just hates it because people will want it, and the proles shouldn’t own guns.

Current Federal law bans certain armor-piercing ammunition for handguns. It establishes a content-based standard. It covers ammunition that is, first of all, constructed from tungsten alloys, steel, iron, brass, bronze, beryllium, copper, or depleted uranium or, secondly, larger than .22 caliber with a jacket that weighs no more than 25 percent of the total weight of the bullet.

However, there are no restrictions on ammunition that may be manufactured from other materials but can still penetrate body armor. Even more important, there are no restrictions on armor-piercing ammunition used in rifles and assault weapons. Armor-piercing ammunition has no purpose other than penetrating bulletproof vests. It is of no use for hunting or self-defense. Such armor-piercing ammunition has no place in our society–none.

Except you don’t need “armor piercing” ammunition to penetrate “bulletproof” vests. Standard soft-point hunting ammo from a .30-30 will do the job, as Teddy pointed out.

Armor-piercing bullets that sidestep the Federal ban, such as that advertised on Hi-Vel’s Web site, put the lives of American citizens and those sworn to defend American citizens in jeopardy every single day. We know the terrorists are now exploiting the weaknesses and loopholes in our gun laws. The terrorists training manual discovered by American soldiers in Afghanistan in 2001 advised al-Qaida operatives to buy assault weapons in the United States and use them against us.

Terrorists are bent on exploiting weaknesses in our gun laws. Just think of what a terrorist could do with a sniper rifle and only a moderate supply of armor-piercing ammunition.

Just think what he could do with a .300 Magnum bolt-action rifle and some decent 168 grain match rounds. But Teddy doesn’t want to take away sporting ammunition, right?

My amendment amends the Federal ban on cop-killer bullets to include a performance standard and extends the ban on centerfire rifles, which include the sniper rifles and assault weapons responsible for the deaths of 17 police officers whose body armor was penetrated by this ammunition.

My amendment will not apply to ammunition that is now routinely used in hunting rifles or other centerfire rifles. To the contrary, it only covers ammunition that is designed or marketed as having armor-piercing capability. That is it–designed or marketed as having armor-piercing capability, such as armor-piercing ammunition that is now advertised on the Hi-Vel Web site.

Bullets that are designed or marketed to be armor piercing have no place in our society. Ducks, deer, and other wildlife do not wear body armor. Police officers do. We should not let another day pass without plugging the loopholes in the Federal law that bans cop-killer bullets.

This is an issue on which mainstream gun owners and gun safety advocates can agree. I urge my colleagues to vote in support of this amendment.

Except we “mainstream gun owners” understand that standard rifle ammo will immediately become a “loophole” because, by design or not, it can penetrate police vests.

And if the lowly .30-30 is “capable of puncturing light-armored vehicles, ballistic or armored glass, armored limousines, even a 600-pound safe with 600 pounds of safe armor plating” then we know he’s going to go after our 7mm Magnums, our .30-06 bolt-actions, and every other centerfire rifle cartridge extant.

All he needs is an open door, and a law that the lawmakers “don’t realize all that was in it.”

A professional politician is a professionally dishonorable man. In order to get anywhere near high office he has to make so many compromises and submit to so many humiliations that he becomes indistinguishable from a streetwalker.

Henry Louis Mencken

And Teddy’s a prime example.

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UPDATE:  As of August 6, 2013, due to the herculean efforts of reader John Hardin, the original JS-Kit/Echo comment thread for this post (read-only) is available here.

It’s Not a GUN CONTROL Problem

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Today’s Washington Post has this column by Courtland Milloy:

So Many Guns In the Hands Of Children

Police officers George Young and Sylvester Garvin III were on routine patrol last month in the District when they detained a juvenile who was driving without a seat belt. Asked for his driver’s license, the boy took off — only to be caught again.

“We asked him why he ran,” Young recalled. “He said, ‘I have a gun.’ ”

In fact, the boy, who is 14, had two guns: a Mac-11 semiautomatic handgun and a .380 semiautomatic pistol, both fully loaded.

First, he’s a 14 year-old boy driving a car. No comment about that?

Since the arrest Feb. 3, however, the case has virtually disappeared behind a shroud of official secrecy, behind one set of laws that protects the identity of juveniles and another that restricts the release of information about confiscated guns. But the questions remain: Who was that 14-year-old boy? How did he get those guns? Why did he have them?

According to a 2002 report by the Bureau of Alcohol, Tobacco, Firearms and Explosives, 57 percent of recovered “crime guns” in the District were taken from people 24 years old and younger.

Handguns accounted for 82 percent of the District’s crime guns, with the semiautomatic pistol being the weapon of choice — especially for those 17 years old and younger, according to the report.

“It’s a shock to sensibility,” said John P. Malone, the ATF special agent in charge of the Washington field office. “At 14, you’re supposed to be a freshman in high school, not driving around with guns.”

For one thing, it’s a perfect example of the fact that “gun control” doesn’t work. DC keeps trading places with that other “gun control” mecca, Chicago, for the highest homicide rate in cities larger than 500,000 population.

The ATF, it should be noted, is neither pro-gun nor anti-gun.

Really? You’ve obviously not been keeping up with the ATF’s actions, then.

Part of its mission is to trace guns that have been used in the commission of crimes and to keep firearms away from ineligible receivers.

Last year, 1,982 guns were confiscated in the District — where a ban on handgun ownership has been in place since 1979 — and turned over to the ATF for tracing. Moreover, 77 percent of the city’s 243 homicides last year were gun-related.

Then DC is significantly above the national average, because according to the Bureau of Justice Statistics, firearms nationwide are used in only about 70% of homicides.

Boy those gun bans really make you safer, don’t they?

So far this year, D.C. police have seized 387 illegal weapons. The Mac-11 (which police initially said was a Mac-10 submachine gun) and the .380 semiautomatic were among them.

“I thought, ‘What is a 14-year-old doing with this kind of fighting power?’ ” recalled Young, who is 30 and has been a police officer for two years.

Shouldn’t you have asked “What has driven kids like this to create a market that supplies them these weapons?” Nobody just came up and handed the kid these guns. There aren’t gun manufacturers going around like drug pushers giving them their first gun for free just to get them hooked (though to hear the VPC, et. al you’d believe that.)

The boy was arrested in the 700 block of Yuma Street SE, in Washington Highlands, the neighborhood where Young grew up.

“We weren’t into guns when I was growing up, unless we were playing cowboys with cap guns,” Young said. “Firearms were off limits. Kids my age just didn’t see guns. But this younger generation is different. Every day that I’m on the street, I expect to face juveniles who are armed. And I know what a 14-year-old is capable of.”

When I was growing up, I was exposed to guns, and did see them. And I also played “cowboys” (the politically-correct term for “cowboys and indians“) with cap guns and other toy guns – a behavior that the PC crowd today wants to eliminate because it “breeds violent behavior.” I doubt this youngster ever played “cowboys” in his neighborhood. He played “gangsta.”

Young hastened to add that such youngsters also are capable of doing good and doubtlessly would do much more of it if given the chance.

“Hastened” because to do otherwise would be seen as un-PC.

This is the liberal “all people are inherently good” position, which I disagree with. People are not inherently good. They are inherently neutral, and develop behavior based on their environment. The poor, urban, welfare environment is what’s responsible for this, not the “easy availability of guns” – but it’s much easier to blame the guns than to face the failure of decades of well-meaning but (literally) homicidally flawed social policy and try to address that. It can’t be the fault of liberal social policies! It can’t be the result of conservative prohibitions! It must be because of those evil gun manufacturers who make Mac-11’s and “Saturday Night Special” .380’s!

“What I’m seeing is a lot of children raising children, parents allowing their children to do anything they want,” he said. “When you’re that young and facing adult situations, you’re going to make a lot of wrong decisions. You’re going to go for the simple and easy and fast, because you don’t see people working long and hard to make it.”

At least officer Young is willing to state, and the WaPo is willing to print, that the problem has to do with the fact that these kids aren’t being raised, but that avoids the underlying cause of that neglect.

The ATF report notes that 55 percent of the District’s traceable crime guns were purchased initially in Maryland or Virginia and that Bryco Arms and Lorcin Engineering 9mm semiautomatic pistols were the preferred weapons of most youths caught with firearms in the District.

Those models can cost as little as $100 if bought in, say, Georgia. But in the District, with its gun ban, they can fetch as much as $300.

See! It’s the gunmakers fault! It’s the fault of the loopholes in gun control laws! It’s the fault of unscrupulous gun dealers!

I’m sure this kid drove down to a gun shop in Virgina and slid past the NICS check when he bought that Mac-11, which sells for in excess of $350, according to GunsAmerica.com.

Anyone wonder where a 14 year-old comes up with, say, $300 to buy a Bryco .380?

Asked about the high demand for guns in D.C., Young said: “For many of these young people, a firearm is like money. It makes you powerful. You can use it to collect so many things the wrong way. A kid with a gun can take a vehicle. He can take someone’s livelihood or his manhood or his life. The person who gets violated may want to retaliate, but if he doesn’t have a gun, then he’s not capable. The one with the gun feels immortal, as if life is stopping for him.”

The 14-year-old’s mini-arsenal certainly made people stop and think, just not for very long.

And, like this article does, it made them think about the wrong questions.

Young, urban, black males are overwhelmingly the victims of homicide. It’s an epidemic among that specific population. Less than 13% of the population provides 47% of the victims of homicide, yet we’re told that guns are the root cause of the problem, and are the only vector for fighting this “public health concern.”

No, a combination of the misguided “War on (some) Drugs®” and the even more destructive “War on Poverty™” are the primary vectors here.

Unless and until we are willing to face the failures of both of these policies, young urban black males will continue to kill each other at epidemic levels – levels six times that of the general population. But instead, people like Courtland Milloy will continue to push for more “gun controls” that will inevitably fail to affect the slaughter.

I’m Conflicted on This One

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County may end appeal against ex-cop

The Somerset County(N.J.) Prosecutor’s Office may withdraw its appeal of a decision to drop assault weapons charges against a former Far Hills police officer.

Prosecutor Wayne J. Forrest confirmed Friday he was considering a request from the state Attorney General’s Office to drop the fight against a judge’s ruling that Ken Moose Jr. legally possessed an assault weapon.

“We’re considering this as an option for resolution,” Forrest said.

Moose was charged with possession of an assault weapon in October 2002, two months after he was suspended from the Far Hills Police Department because of questions about his mental fitness for duty. As part of his suspension, he turned over all his weapons — including a World War II-era M-1 carbine assault rifle, which is listed in New Jersey’s assault weapons ban.

Moose and his attorney argued he was allowed to possess the gun under a loophole in the law that allowed municipal or county police officers to have them “at all times while in the state of New Jersey.”

Here is where I’m conflicted. The cops get “special dispensation” in these laws instead of being treated as civilians like the rest of us. And they are civilians like the rest of us, not being under the rules of military justice. I’ve repeated it again and again, but Robert Peel’s Nine Principles spell this out:

Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Yet in New Jersey and everywhere else they have special rights and privileges denied to those of us who don’t wear a badge and draw a government paycheck.

But this guy followed the rules. When suspended, he turned in the weapon that was denied to him as a regular joe like the rest of us, only to be prosecuted for having it in the first place.

But Matthew Murphy, assistant Somerset County prosecutor, argued in court papers the Legislature never intended for the law to apply to the private possession of those weapons by police officers in their home. He said to rule differently would create a “secret society” of police officers with otherwise illegal weapons that aren’t registered or regulated.

Seems the Prosecutor and I see things similarly, but in this case he’s completely wrong – the law did indeed apply to the private possession of these weapons. That’s what people like me object to. When Silveira v. Lockyer was first argued before the 9th Circus Circuit one argument was that the Roberti-Roos “Assault Weapon Ban” did exactly the same thing – made police officers a “secret society” allowed to have these supposed horrible weapons of destruction without registration or regulation. While the Court (unsurprisingly) upheld the majority of the law – they agreed and struck the police exemption. New Jersey hasn’t had a similar challenge, and the courts there have (in this case) decided that officer Moose was within the law:

But Superior Court Judge Edward M. Coleman disagreed, saying the law clearly exempted municipal police officers. He welcomed review of his ruling by both the appeals court and the Legislature, which this year will consider whether to close the loophole.

There’s always a “next step” in gun control legislation. Another “loophole” to be filled, another restriction to be “tightened.”

Always.

“This confirms that the indictment never should have been brought, and that the appeal would not have been successful if the judges had been allowed to make a decision,” Moose’s attorney Brian Cige said Friday.

Cige said he hoped dropping the appeal would help Moose return to law enforcement.

Moose said he would like nothing better than to find another job as a police officer. But he remained angry at the entire process.

“What do I do to rebuild my life once politics took it away?” he asked.

Welcome to the world of us mere “civilians,” Mr. Moose. Ask that question of Joseph Pelleteri who lost his livelihood and his right to arms over a Marlin Model 60 .22 caliber rifle he had never even shot.

You’ll excuse me if my sympathy for your particular plight is small to non-existant.

They Can’t Keep Dodging FOREVER

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The Supreme Court has sidestepped the Second Amendment AGAIN, denying cert. on Silveira v. Lockyer.

Gun control groups will doubtlessly tout this as “proof” that there’s no individual right to arms, neglecting the fact that that same reasoning would “prove” that there is one, based on SCOTUS’s denial of cert. on U.S. v. Emerson.

Excuse me, but I’m PISSED!

UPDATE: Clayton Cramer comments. He thinks gun owners dodged a bullet, but I disagree. He says:

It wasn’t the perfect case, because it involved several different questions:

1. Does the Second Amendment protect an individual right?

2. Does the Fourteenth Amendment incorporate this right against the states?

3. Are assault weapons included among the protected arms?

—

Supreme Court justices, however, are not required to be honest or consistent, and I suspect that the prospect of striking down California’s useless assault weapon ban would have caused the the Supreme Court to look for some way to uphold California’s assault weapon ban, leading to at least a NO on #2, and perhaps a NO on #1.

Perhaps he’s right, but he also says:

There’s a sequence for winning constitutional issues: win the simplest and least offensive case first; then use then(sic) as a wedge to win the less popular situations.

We’ve been fighting this fight since 1939. How long are you willing to wait, Clayton? Silveira asked those three critical questions. Had SCOTUS heard the case and decided those three questions, then we gun owners would know where we stand, wouldn’t we?

Those are questions I’m losing patience over. The Justices may not be “required to be honest or consistent,” but it’s our job as citizens to hold them to that standard, isn’t it? Just throwing up our hands and saying “Oh, well…” doesn’t cut it. That kind of crap gives us courts like the 9th Circus – the epitome of dishonesty and inconsistency.

Another UPDATE: Say Uncle comments too, and apparently Eugene Volokh had the original scoop.

UPDATE 12/3/03: Publicola comments as well, in conjunction with SCOTUS’s recent decision overturning the 9th Circus’s ruling that 20 seconds was not enough time to wait before jack-booted thugs government agents busted down the door of a suspected drug dealer. Money quote:

I seriously doubt either will have any positive effect on the going on in congress &/or the courts. I don’t think we’re gonna see anything close to freedom unless there’s another revolution. The government has too much of a hold on power & it will not let it go easily.

But I would suggest that if anyone busts down your door, defend yourself. It may be cops & it may not. But if I can’t check out their credentials & read the warrant to determine its validity before they enter, I’ll assume they’re either criminals in disguise or just criminals in uniform & attempt to repel them accordingly.

In summation none of this bodes well for the Republic, or its people.

Can I get an “AMEN!”?