Law – Shall Not Be Questioned

Highly Recommend Dred Scott History

I noticed Dave Hardy won an award from the African-American Genealogical Society for his work on the Dred Scott case. So I picked up a copy from Amazon. It’s not long. I got through it in an evening.

Imagine a reality in which people can own other people (buying them with or without a warranty), or a person can buy himself, and become free. A reality in which slaves can sue their masters, and have a jury decide whether they are really free. Into this not-alternate reality came a remarkable cast of Americans: Dred and Harriet Scott – the slaves whose suit for freedom sparked a battle in the Supreme Court and in the White House. John F. A. Sanford – the mountain man turned New York millionaire, who agreed to pose as the Scott’s owner so the suit could be filed. Rep. Calvin Chaffee – the prominent Massachusetts abolitionist, who was shocked to discover that he and his wife owned slaves, indeed the most famous slaves in the United States. Roger Taney – Chief Justice of the Supreme Court, who tried to preserve the Union by protecting slavery, and instead brought on the Civil War and slavery’s abolition. James Buchanan – the President-elect who secretly connived with the Court’s pro-slavery Justices, seeking a ruling that would let slavery spread throughout the territories. Abraham Lincoln – the failed frontier politician who awoke one morning to realize that Taney and Buchanan had given him the roadmap to the White House.

I highly recommend it. This is not the story of the Dred Scott case you learned about in high school.

Connecticut Supreme Court Allows Bushmaster Suit to Go Forward

It should come as no surprise that a Dan Malloy packed court decided that PLCAA be damned, the Sandy Hook families suit against Bushmaster could go forward. Malloy has appointed all but two justices on the Supreme Court. One of those joined the dissent. I’d note that the Chief Justice, appointed by Malloy, joined the dissent as well. I’ve only skimmed over the opinion at this point, but based on that, it looks like the following:

The Court upheld the decision by the lower courts that suggested the negligent entrustment claim does not fall under the safe harbor provisions in the PLCAA. That’s good, because that was the most potentially damaging had it succeeded.
The Court ruled they had standing to sue. The argument was that because they did not have any consumer relationship with Bushmaster, the plaintiffs had no standing to file suit. The Court dismissed this and ruled they had standing, since they alleged they were harmed by Bushmaster’s marketing.
The Court applied the Statute of Limitation for wrongful death claims to the plaintiffs, dismissing the argument that the suit fell outside the statute of limitations for the Connecticut Unfair Trade Practices Act (CUTPA).
The defendants claimed it was a product liability claim, which would mean the plaintiffs forfeit any right of action under CUTPA. The Court disagreed.
The Court ruled the PLCAA did not bar a suit against Bushmaster for violating CUTPA, arguing that Bushmaster violated state law by marketing the AR-15 “to civilians for criminal purposes.” The claim is because Bushmaster used military imagery in their advertising, they were essentially marketing to mass killers.

To those of you who think Bloomberg doesn’t matter: I’ve been following the legal arguments of anti-gun attorneys for some time. The negligent entrustment issue is something they would have come up with years ago, and I think I remember this attempt. It failed even here. This new theory is brilliant. If it’s allowed, a handful of anti-gun states will effectively be able to control the marketing of firearms, just like with tobacco. Remington Outdoors has the option to appeal this to the Supreme Court of the United States. That is, in fact, the next step after losing at the Connecticut Supreme Court.

For those of you driving through Connecticut: be aware that most auto manufacturers use racing teams to help market their products. Formula 1, NASCAR, Rally racing, etc. If you are hit and injured by anyone driving a car marketed by one of these manufacturers where the driver is speeding, by the logic of the Connecticut Supreme Court using CUTPA in this manner, you have a cause of action against the auto manufacturer for negligent advertising. If I were Tesla, I’d think about renaming “Insane Mode” too. I won’t even get into how accountable video game manufacturers will be under this novel legal reasoning. But I suspect we got this ruling because like the Orange Man is Very Bad, Guns are Very Icky, just like the people who like them.

Tough New Federal Gun Laws

Dave Kopel looks at the issue in The Hill, and notes, tongue in cheek:

In the spirit of these proposals, here are some ideas for tough federal gun laws â€” most of which should have been enacted years ago.

For people convicted of domestic violence, even a misdemeanor, how about a lifetime prohibition on firearms possession?

Further, a government license should be required for anyone who wants to manufacture, import, or sell firearms. The license should be mandatory not only for formal businesses, but also for individuals who make repetitive transactions for the purpose of profit. This would cover people at gun shows who put up signs declaring themselves to be â€œunlicensed dealers.â€ Anyone who engages in the firearms business without a federal license should be punished by up to five years imprisonment and a $250,000 fine.

Almost no one knows what our current gun laws are. But based on my social media feeds, that sure doesn’t stop everyone from thinking they are fucking experts.

Learn Your NFA Terms

Seeing gun owners try to explain to other people the laws around machine guns is painful, especially when they get terminology wrong. Let us go over briefly some terms.

The Federal Firearms Licensee

There are a lot of different types of FFLs. Let us review:

Type 1 – Dealer in Firearms (but not destructive devices)
Type 2 – Pawnbroker
Type 3 – Collector of Curious and Relics. I lot of you have this one, and so do I.
Type 6 – Ammo manufacturer
Type 7 – Firearms manufacturer (but not destructive devices)
Type 8 – Importer of firearms (but not destructive devices)
Type 9 – Dealer in destructive devices
Type 10 – Manufacturer of destructive devices.
Type 11 – Importer of destructive devices.

The Special Occupational Taxpayer (SOT)

You’ll often hear people refer to “Class 3 firearms” Ain’t no such thing as a class 3 firearm. Classes are Special Occupational Taxpayers. This is the license that allows an FFL to deal in NFA items.

Class 1 SOT – Importer of NFA firearms.
Class 2 SOT – Manufacturer and dealer of NFA firearms.
Class 3 SOT – Dealer of NFA firearms.

Title I and Title II

This refers to Title I and Title II of the Gun Control Act of 1968. This is how to categorize a firearm. Machine guns are Title II firearms. Rifles, shotguns and handguns are Title I firearms. Silencers are Title II items, but we’re trying to move them to Title I. The National Firearms Act regulates machine guns. It is part of the Internal Revenue Code. It was a 1986 Amendment to the Gun Control Act that banned any new machine guns from being registered to non-government entities, 18 U.S.C. 922(o). If you’re in possession of a Title I firearm illegally converted to a machine gun, you’ll be charged with violating 922(o), not violating the NFA. The government can’t prosecute you for failing to pay a tax it refuses to collect.

NRA Legal Seminar Catches Press Attention

I suspect it’s a good thing when media that specifically serves the legal profession covers the NRA law seminar and the fact that it qualifies for CLE (continuing legal education) credit.

Even though many attendees were ready to open fire, if the need arose, the daylong event looked and sounded like most other CLEs.

I have to admit, it would be nice if they would have mentioned it’s an annual event that will be offered in Dallas next year. I’m sure there are plenty of pro-gun lawyers in Georgia who didn’t learn about it in time and would love to get out to the next one.

It’s Important to Understand Just How Hostile The Courts Are

I see it all the time: people who believe the Second Amendment is an obvious, self-enforcing unmovable rock of American law. If you spend any time talking to gun owners, you will run into this. The basic idea that judges could simply interpret it out of the constitution is such an anathema to many people like this, they will often refuse to accept that it could happen.

In that vein, the 4th Circuit sitting en banc, in a 10-4 ruling deciding the fate of Maryland “assault weapons ban” have held that weapons that are “most useful in military service” are simply categorically unprotected. Because almost all modern firearms have a military pedigree, this interpretation would allow nearly any firearm to be banned.

The ruling was 10-4. Just let that sink in. That’s not even close. We have had to convince four additional judges to prevail here. A lot of people have done analysis of the ruling already, like Charles C.W. Cooke and John Richardson. What I want to do is look at a breakdown of the judges:

Majority

Judge King wrote the majority opinion, and was appointed by President Clinton.
Chief Judge Roger Gregory joined the opinion. He was recess appointed by Bill Clinton, but George W. Bush put him on the bench permanently.
Judge Harvey Wilkinson wrote a concurring opinion. He will never sit on the Supreme Court so long as there’s any life left in the National Rifle Association. He is a “conservative” judge, but one who hates gun rights. He was appointed by President Reagan.
Judge Motz was appointed by President Clinton.
Barbara Milano Keenan was appointed by President Obama.
James A. Wynn was appointed by President Obama. He joined Judge Wilkinson’s opinion.
Henry Franklin Floyd was appointed by President Obama.
Stephanie Thacker was appointed by President Obama
Pamela Harris was appointed by President Obama

Joined in Part

Albert Diaz was appointed by President Obama. He only joined the 2nd Amendment and 14th Amendment portions of the decision.

Dissent

William Byrd Traxler was appointed by President Clinton, and wrote the dissenting opinion.
PaulÂ Niemeyer was appointed by President George H.W. Bush
Dennis Shedd was appointed by President George W. Bush
G. Steven Agee was appointed by President George W. Bush

Boy I sure am glad we taught the GOPe and those assholes McCain and Romney a lesson they won’t ever forget! Even if George W Bush and Reagan hadn’t flubbed a few nominations, we still would have lost because the 4th circuit Court of Appeals is absolutely stacked to the gills with Obama and Clinton nominees. You know the old adage that only the Republicans get court picks wrong?

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in oneâ€™s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.

Therefore I respectfully dissent.

Written by a Clinton Appointee. Sometimes they don’t get what they want out of a judge either.

Reciprocity for non-resident permits

Via the NRA’s FB page I just found out thatÂ Rep. Richard Hudson (R., N.C.)Â does intend that his bill cover reciprocity of non-resident permits. Which means I probably ought to start looking into getting a non-resident permit from someplace, so I can join Sebastian and Bitter in a small victory dance in Central Park :)

From a purely pragmatic viewpoint, this may make it harder to get passed, because states which have training requirements might object to having them bypassed. So we shall see how that fares in the sausage grinder. And then it has to survive the inevitable court challenges. That having been said, that the bill’s author is starting with that as the base is something I wouldn’t have expected even a couple of years ago.

Big Brother of King Country

I rank the “third-party doctrine”Â as one of the gravest sins against the Constitution; and were I able, I would expressly repeal it via constitutional amendment.

Because otherwise you end up with stuff like this, where King County is using store loyalty card data to enforce pet licensing.

Misleading Pennsylvania’s Voters

Pennsylvania voters will be casting votes for a ballot initiative they have already defeated once this year. Why?

Because lawmakers realized what the outcome would likely be and decided at the last minute to invalidate the question wording to put something more misleading on the ballot instead. Based on a test run by a polling firm, they are going to get what they want by playing dirty.

What’s the issue? Judicial retirement ages.

In April, we were asked directly whether or not to increase the age at which judges could retire from 70 to 75. The question before voters was clear:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

It explained who it would apply to, the proposed change, and the old rule. Perfectly reasonable ballot question! Except that when you look at the history of these types of votes in other states, they almost always go down in defeat. So the lawmakers decided to change the wording at the last minute. Except absentee ballots were already printed and voting machines programmed. Instead, we were told that our votes wouldn’t count, so we shouldn’t bother voting on it. But 2.4 million people voted anyway, and they said no to the increase – exactly what lawmakers feared would happen.

When the new language was announced, a couple of former Supreme Court Chief Justices sued on the basis that it’s deliberately deceitful. You be the judge:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

Funny how now it sounds like you’re adding a judicial retirement age to the constitution instead of extending the terms of those in office! Even funnier that the current Chief Justice turns 70 this winter, and the next in line for the seat turns 70 next year. What an odd and completely unexpected coincidence! What an even stranger coincidence that the Supreme Court decided to leave the question alone with one Justice recusing, half saying it’s perfectly clear and the other half saying it’s confusing. Average age of the justices voting that it’s clear as day? 62. Average age of those voting that it’s clear as mud? 55. If you count the Chief Justice’s recusal as putting him in the camp of those wanting the new, confusing language, that average age goes up to 64.

While I did vote no on the initial non-binding vote, I could have been convinced that it’s worthwhile to increase the retirement age. But now, no way. This is a deliberate deception, and one columnist mentions that a local polling firm has found it’s likely going to work exactly how lawmakers and the courts wanted it to work.

Berwood Yost, chief methodologist for the Franklin & Marshall Poll, … found in a split-ballot experiment that voters presented with the current wording tended to vote â€œyes.â€ When asked if justices should be able to retire at 75 instead of 70, however, most say no.

If you’re a Pennsylvania voter, I would strongly encourage you to vote “NO” on the ballot question this November. More importantly, tell your friends and family who vote about what’s going so they know not to support this kind of deceit. In April, it was a legitimate vote on the retirement age. Next month, it’s a more of a vote on legal ethics. Don’t let them play these games and get away with it.

Bad News for Sharing Gun Information Online

The Court of Appeals for the Fifth Circuit has refused to grant a preliminary injunction against the State Department to prevent it from enforcing ITAR rules against Defense Distributed.

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Departmentâ€™s stated interest in preventing foreign nationalsâ€”including all manner of enemies of this countryâ€”from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

Jesus, you’d think they were talking about a plans for a Pershing Missile here, not sharing publicly available data on how to manufacture small arms. It’s not like these are national defense secrets. We’re talking about information that is in the public domain! The government even asserts that it’s only Internet publication that’s problematic, and that it’s still within rights to publish this kind of thing through older media.

Judge Edith Jones, a Reagan appointee, was the dissenter in the case. In the majority were Judge Eugene Davis, a Reagan appointee, and Judge James Graves, an Obama appointee. From Judge Jones dissent:

This case poses starkly the question of the national governmentâ€™s power to impose a prior restraint on the publication of lawful, unclassified, not- otherwise-restricted technical data to the Internet under the guise of regulating the â€œexportâ€ of â€œdefense articles.â€ I dissent from this courtâ€™s failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.

Reading her dissent, she really gets it. Judge Davis is 80 years old. Does he really understand the implications of what the State Department is doing here? From Judge Jones dissent:

Defense Distributed and its amici challenge the regulationsâ€™ interpretation of â€œexportâ€ and the â€œpublic domainâ€ exception to the definition of â€œtechnical data.â€ Although the majority opinion adopts the State Departmentâ€™s litigating position that â€œexportâ€ refers only to publication on the Internet, where the information will inevitably be accessible to foreign actors, the warning letter to Defense Distributed cited the exact, far broader regulatory definition: â€œexportâ€ means â€œdisclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States of abroad.â€ There is embedded ambiguity, and disturbing breadth, in the State Departmentâ€™s discretion to prevent the dissemination (without an â€œexportâ€ license) of lawful, non-classified technical data to foreign persons within the U.S. The regulation on its face, as applied to Defense

Distributed, goes far beyond the proper statutory definition of â€œexport.â€Â Even if â€œexportâ€ in AECA could bear a more capacious interpretation, applying the State Departmentâ€™s regulatory interpretation to the non- transactional publication of Defense Distributedâ€™s files on the Internet is unreasonable. In terms of the regulations themselves, how this expansive definition of â€œexportâ€ interacts with the â€œpublic domainâ€ exception is unclear at best. If any dissemination of information bearing on USML technical data to foreign persons within the U.S. is potentially an â€œexport,â€ then facilitating domestic publication of such information free of charge can never satisfy the â€œpublic domainâ€ exception because newspapers, libraries, magazines, conferences, etc. may all be accessed by foreign persons. The State Departmentâ€™s ipse dixit that â€œexportâ€ is consistent with its own â€œpublic domainâ€ regulation is incoherent and unreasonable. Even if these regulations are consistent, however, attempting to exclude the Internet from the â€œpublic domain,â€ whose definition does not currently refer to the Internet, is irrational and absurd. The Internet has become the quintessential â€œpublic domain.â€ The State Department cannot have it both ways, broadly defining â€œexportâ€ to cover non-transactional publication within the U.S. while solely and arbitrarily excluding from the â€œpublic domainâ€ exception the Internet publication of Defense Distributedâ€™s technical data.

If the majority’s reasoning holds, it’s bad bad news for tinkerers everywhere. A lot of topics are considered defense articles. This goes way beyond guns. It will be a great offense to the First Amendment if this ruling holds.