The right of the citizens to bear arms in defense of themselves and the State …
I’ve been meaning to listen to this for a couple of days, but just got around to putting it on as background to working on random projects. Brian Aitken did an interview with Sam Adams Alliance to talk about his arrest, and this portion gives the basic story with a focus on why he turned down several plea bargains.
Take a minute to listen: Brian Aitken Interview
NSSF is reporting that Judge Weinstein, who is (in)famous for pretending FOPA does not exist, and abusing personal jurisdiction when it comes to lawsuits against the firearms industry, has been smacked down by a higher court:
Finally, after more than 15 years of Weinstein dragging members of the firearms industry into his courtroom based on his unique, industry-specific personal jurisdiction jurisprudence, someone on the U.S. Court of Appeals for the Second Circuit has had an opportunity to expose Judge Weinstein’s improper and unconstitutional analysis used to advance his attack on our industry.
You can read the entire ruling here. Judge Wesley’s opinion is the last, and is scathing. He accused Weinstein of “creat[ing], out of whole cloth, a seven-factor test for determining whether personal jurisdiction exists over ‘retail gun establishments.’â€
Clayton has an interesting story about Righthaven, who had a court unseal the agreement they have with Stevens Media. Turns out they may not own the copyrights they are suing over after all. You can find more information about this over at the Righthaven Victim’s blog. The Las Vegas Sun reports attorneys are filing t have cases dismissed:
“Righthaven has willfully deceived this court. Righthaven fought mightily to keep this evidence from the public and from all defendants in its legion of cases brought in this district. An examination of the document and its implications for Righthaven’s business model make the reason plain – it reveals the unlawful nature of Righthaven’s actions before this court and renders all of its lawsuits null and void,’’ the filing said.
They said Righthaven perpetrated upon the court a “sham’’ and a “fraud’’ hundreds of times in its lawsuits by claiming in the lawsuits that Righthaven “owns’’ the copyrighted stories, photos and graphics it sues over, and has exclusive rights to reproduce and distribute them, when in fact its contract with Stephens Media says Stephens Media retains those rights.
I sincerely hope that everyone who settled with Righthaven will now be filing suit against Righthaven and Stevens Media to recover their settlement. I would imagine they would also be on the hook for attorneys fees as well.
Even Nappen ponders whether it’s unlawful for legislators to vote for a “Firearms Freedom Act,” such as the one in New Hampshire with threatens federal officials with jail time and crimes for attempting to enforce federal gun laws.
Generally speaking legislators enjoy some form of legislative immunity, which means they can’t be sued for their actions as legislators. But legislative immunity for criminal matters is typically something defined by the Constitution, and in no case that I know of is such immunity unlimited. There’s certainly nothing in the federal constitution that immunizes state legislators from being subject to federal laws.
There is no doubt that a law criminalizing the interference of federal officials in the execution of their lawful duties is among Congress’ enumerated powers, because it is a “necessary and proper” exercise of their power to make and enforce laws under the authority of the Constitution.
This is an interesting question, and I can’t find anything that says the answer is definitely no, that it is not technically illegal. States do have sovereign immunity, and I would imagine state lawmakers could seek protection under that idea. But I can’t find any case that suggests state lawmakers can’t be criminally liable for passing a law which violates a federal criminal statute. Anyone else know?
He was previously a prosecutor, that flipped sides and became a defense attorney:
I’m glad he’s now a defense attorney.
My friend Jason and I were just having a discussion about the National Firearms Act. Given that he has a Saiga-12, there’s a strong possibility he’s going to have to register it if the ATF ruling coming out next week declares they are banned from importation because of a lack of “sporting purpose.” We were further discussing this is going to mean a lot of people who own them, and there are many, are going to end up in federal prison because they just don’t know about the new requirement. The discussion continued into the legal vagaries and silliness of the NFA, and we came up with this brain teaser, that involves gun wielding robots.
Say you build a robot that could wield an unambiguously semi-automatic AR-15, but could pull the trigger very rapidly at the same rate of fire as that of an M16. There are three possible methods such a theoretical robot could function:
The brain teaser here is whether or not the robot is a machine gun under the National Firearms Act, and if it is, which part is considered the machine gun? Is the robot itself a machine gun? Is the software a machine gun? What if you changed the software so it only fired one shot at each target?
My feeling is, in the case that you can command the robot to fire with some kind of device, the robot is indeed a machine gun, and not the software, because the programmability allows it to be readily converted. Whatever device you pressed or actuated to get the robot to fire can legally become the “single action of the trigger.”
It becomes far more ambiguous in the case where the robot operates autonomously, or if you could verbally command the robot to fire. If you commanded it to fire verbally, and it let loose a three shot burst, what was the single action of the trigger? This makes for an interesting case if anyone ever develops a general purpose robot that happens to be able to fire a gun, but much faster than a human could. Will all general purpose robots of such a nature need to be registered under the National Firearms Act? What happens if such robots become ubiquitous? Will you need to program them not to be able to fire weapons? Maybe that would be a smart thing to do. When they outlaw killer robots, only outlaws will have killer robots.
Good dialog on this topic over at Volokh.
UPDATE: Why I love my commenters. From the comments, probably the best case for 14th Amendment birthright citizenship I think I’ve seen:
I think the 14th Amendment’s greatest gift to the country has been in preventing us from creating a permanently disenfranchised class of people in our midst. The lesson of watching Palestinians dancing in the streets as the Iraqi tanks rolled in back in ’90 shows what can happen when you base your economic system (and by extension your political system) on people who are not allowed to ever enjoy the benefits of it. And make no mistake that “we,” as a country, have definitely decided to let illegal aliens in; we’re not so helpless as we pretend. Today illegal immigrants are mainly Mexicans who work in the industries (agriculture, canning, and increasingly construction and landscaping) we’ve decided are best staffed by underpaid workers whose wages and benefits are kept low by denying them access to jobs in other sectors or to legal recourse when they get ripped off. Without the 14th Amendment, their children would forever be stuck in the predicament, making our agricultural “caste system” permanent, like in most of Europe (Gypsies, Turks, etc.) Our 14th Amendment stops us from re-instituting hereditary slavery under another name, though we know many would try to if they could (see: Irish, Chinese, etc.)
First Comment. Read the whole thing.
The ATF may want to regulate long guns by requiring multiple purchases to be reported, but I think it’s almost certain they have no authority to do so. Handguns require this form, but that is because 18 USC Section 923(g) gives ATF that power explicitly:
(3)(A) Each licensee shall prepare a report of multiple sales or other dispositions whenever the licensee sells or otherwise disposes of, at one time or during any five consecutive business days, two or more pistols, or revolvers, or any combination of pistols and revolvers totalling two or more, to an unlicensed person. The report shall be prepared on a form specified by the Attorney General and forwarded to the office specified thereon and to the department of State police or State law enforcement agency of the State or local law enforcement agency of the local jurisdiction in which the sale or other disposition took place, not later than the close of business on the day that the multiple sale or other disposition occurs.
If Congress had intended ATF to have the power to require this form for long guns, they well knew how to do so, but chose to limit the requirement to pistols and revolvers. The fact that shotguns and rifles are not included in this statutory requirement is indicative that ATF does not have the power to require this for long guns at all. This is a power grab by the agency, pure and simple.
Dave Hardy points out Sanford Levinson’s “Protestant” and “Catholic” views of the Constitution. The irony being it’s the Catholics on the Court who seem to take the more “Protestant” view of the Constitution. It would be even more ironic of the Protestants on the Court took a more Catholic view as well, but at this point there are no Protestants on the court. It’s basically six Catholics and three Jews. I’m surprised this isn’t driving the tin foil hat crowd completely nuts. It’s a papist conspiracy!