Law – Page 14 – Shall Not Be Questioned

A proposed amendment to the US constitution (Updated)

I would like to suggest the following amendment to the US constitution:

No person shall be convicted of a felonious crime or subject to lengthy term of imprisonment or loss of civil rights, or ruinous fine, or a sentence of death, save that either:
1)The intent of the accused to knowingly commit the specific alleged crime be proven beyond a reasonable doubt in open court
OR
2)The felonious actions of the accused be proven beyond a reasonable doubt in open court to have resulted in actual bodily injury, actual physical harm, or death, to another person

The goal here is to require intent for non-injurious crimes; no more strict liability.

(Edited to add the italicized words – the accused must have either meant to commit a crime or the injury must have been serious enough to merit a felony indictment. Please pass the BATFE and Sen Lautenberg some Kleenex)

Who gets to vote?

My last post, I noted thatÂ (anecdotally)Â Â the majority of parents in the Camden City school district were ineligible to vote for being immigrants or felons. Should this be?

I know a bunch of youÂ out there are in favor of restoral of rights for felons after leaving the pen, because if they were too dangerous toÂ have a gun, they shouldn’t have been let out. I agree with that.Â Â If we allow them to have guns, why stop them from voting? “Because they’ll vote for the other side” isn’t a valid argument here. They’re out, they’re paying their taxes (even if they’re under the income tax limit, they pay property tax and sales tax, which are local taxes). Shouldn’t they get some input into the political process,once they’ve served their time?

How about for legal aliens? (If you’re here illegally, get your butt home and jump though the proper hoops. I have too many friends who have gone through the tortuous procedure to become a resident alien legally to feel any sympathy for the queue-jumpers). At least for local (city/county level) elections?Â There’s too many potential policy implications for state-level voting for me to feel comfortable letting non-citizens vote at the state level, and, of course, input into national decisions is a privilege of citizenship. At the local level, though?

The floor is open for discussion.

Asking the Important Legal Questions

Is it legal to eat your cat? In New York State, the answer is apparently no:

When police in Western New York pulled over Gary Korkuc for blowing off a stop sign on Sunday, theyÂ found a live cat in his trunk, covered in cooking oil, peppers, and salt. Korkuc told authorities that his pet feline was “possessive, greedy, and wasteful” and that he intended to cook and eat it. Korkuc has been charged with animal cruelty. Is there a legal way to cook and eat a cat?

Maybe in some places, but not New York.

I think in Pennsylvania this would likely also be illegal unless you slaughter it according to state law, which stipulates methods that animals can be slaughtered (firearms are among the methods permitted for taking animals). It certainly could be possible to legally eat your cat in Pennsylvania, but I’m pretty sure slathering your live kitty with cooking oil, pepper and salt isn’t the beginning of a legal slaughtering method, and itself might be considered cruelty.

Personally, I think salt and pepper is a really unimaginative seasoning mix for Felis Catus. I would think at the least, a marinade is called for.

UPDATE: It would seem it was chili peppers and red peppers, from the more detailed article. Better, at least.

Animal Rights Activists Abusing our Court System

Locally, animal rights extremists have been targeting a gun club that hosts pigeon shoots near Philadelphia. Â The PR problems this creates for the community are another issue to debate another day. Â Today, it’s about the legal issues.

Pigeon shoots are legal in Pennsylvania. Â There’s no doubt about it, and the legislature hasn’t made any moves (so far) to seriously look at banning it. Â (There are bills introduced, but no real action has been taken on them.) Â However, the fact that it’s a legal activity hasn’t stopped a local official from trying to clog our courts with charges against the gun club. Â Fortunately, our county DA is willing to stand up for shooters.

District Attorney David Heckler has asked the court to dismiss animal cruelty charges against the Philadelphia Gun Club and instructed pigeon shooters there to make a $200 donation to the Bucks County SPCA for a wounded bird that wasn’t immediately killed by hunters.

At Heckler’s request, Bensalem District Judge Len Brown said he will no longer consider the June 18 complaint filed by Humane Society officer Johnna Seeton.

Seeton, a court appointed officer, alleges that pigeon shoots at the Bensalem gun club violate animal cruelty laws. But Heckler said, “the shooting of live pigeons is unquestionably legal.”

The district attorney said he perceived the citation was “motivated by a desire to discourage live pigeon shoots themselves, despite the fact that the Pennsylvania Legislature has repeatedly and specifically declined to outlaw this activity.”

The animal rights nutcases are outraged by the dismissal and for being called out for their tactics – attempting to use police power to regulate something that is perfectly legal just because they personally don’t like the activity. Â So now they have resorted to claiming the DA has been bought by the gun club.

Their evidence? Â The attorney representing the club once made a donation to the local Republican Party long before this case ever came up. Â The DA is a Republican. Â Don’t you see the obvious corruption involved? Â They are Republicans! Â And one Republican donated to a Republican group which means that all Republican politicians are now corrupt! Â It’s so damn obvious to them…

Unfortunately, this abuse of the system and blatantly false allegations of corruption are being funded by Bob Barker. Â If these are the sort of tactics he endorses, then I’m going to cheer every time something bad happens on the boat he donated (well, donated the funds to buy) for Whale Wars. Â (Who am I kidding? Â I already cheer every time something goes wrong. Â It usually comes after the laughing.)

Legal Oddities

Xlrq notes that North Carolaina’s laws against fornication and adultery favor gay sex. This is a prettyÂ amusingÂ chapter in the law of unintended consequences.

Serial Numbers Upheld by 3rd Circuit

This ruling strikes me as largely correct:

Scirica, who was joined by 3rd Circuit Judge Michael A. Chagares and visiting U.S. District Judge Joseph H. Rodriguez of the District of New Jersey, looked to First Amendment law in deciding that the federal ban on guns with obliterated serial numbers should be subjected to “intermediate scrutiny.”

But even if the law were held to strict scrutiny, Scirica said, it would still pass constitutional muster.

“Serial number tracing serves a governmental interest in enabling law enforcement to gather vital information from recovered firearms,” Scirica wrote, “Because it assists law enforcement in this manner, we find its preservation is not only a substantial but a compelling interest.”

Overall I think this is a reasonable ruling, and shows the courts are willing to take the Second Amendment as seriously as other constitutional rights. The fortunate thing here is that Judge Scirica rejected a rational basis test, which was asked for by the US Attorney, and made the comparison directly to the First Amendment. Orin Kerr has more here, including a link to the opinion itself. Eugene Volokh is cited.

So it would seem at least that three judges of the Third Circuit are willing to treat the Second Amendment fairly. This is encouraging.

New Lawsuit Challenging California Ammunition Laws

This one is not challenging the law based on Second Amendment grounds, but rather based on theÂ SupremacyÂ Clause, and the Federal Aviation Administration Authorization Act (FAAAAAAAAAAA, or something like that, for short). How likely is success?

In February 2008, a unanimous United States Supreme Court struck down Maineâ€™s directly analogous law regarding the delivery of cigarettes to Maine inÂ Rowe v. New Hampshire Motor Transport.Â Â Rowe made clear that a state cannot interfere with a carrierâ€™s rates, routes, or services, because Congress made an important decision to protect common carriers from a patchwork of state and local regulations burdening interstate commerce when it enacted the Federal Aviation Administration Authorization Act (FAAAA).Â The FAAAA specifically prohibits state and local governments from interfering with common carriersâ€™ rates, routes, or services.

It would seem very likely, in this case, that this part of the California law is a violation of the FAAAA. But the state could still criminalize the receiving of ammunition via common carrier that the state considers to be a regulated product. The issue here would only be that the requirements that California imposes on Common Carriers is unconstitutional.

You can find the complaint here. I am happy to see the Owner-Operator Independent Drivers Association, Inc on this lawsuit. It’s always seemed to me that it was a natural alliance. Truck drivers spend time traveling, often in seedy locations. Their need for personal protection is acute, and they are inhibited by the patchwork of onerous firearms regulations from exercising their rights.

I should also note that this will at least allow Californians to get some ammunition. The logical move, in the facts of this California ammunition law, is for Common Carriers to refuse to ship ammunition to anyone in California, rather than trying to sort out the good, bad and the ugly.

Clearly They Have Not Learned from Stevens Media

SayUncle is reporting that Knox News had some of their content stolen by an Examiner.com writer. I’m sure Righthaven would be happy to sue the writer and Examiner.com if given half the chance, without warning or attempt at resolution. Clearly Knox news has not adopted the new business model of the failing old media. But Jack McElroy notes:

Apparently, search engine optimization is more important than basic beat reporting, these days. That’s not only sad; it’s scary.

Yes. That is the basic truth. Examiner.com’s business model is really based entirely on bringing traffic to their site, regardless of whether that traffic represents people getting value out of the content, or just arriving on a search term. That’s one of the reasons Examiner.com exercises very little editorial oversight over their content producers — if they did it would actually be a detriment to their business model. Their strategy is to put as much content out there as possible related to specific topics, and then dominate the search rankings for those terms. The quality of the writing, or the value of the content have little bearing on bringing search engine traffic.

Google is going to necessarily have a profound impact on reporting and news gathering, and groups like Stevens Media, and the reporter here, obviously don’t get there’s a benefit, search engine wise, to having one of your stories widely linked, even if the linker quotes a little from it. But the legal implications of the Examiner.com model are interesting. The fair use doctrine uses a four factor test in trying to determine whether a use of copyright works is fair. One of those factors includes “whether such use is of a commercial nature or is for nonprofit educational purposes.” Examiner.com directly makes money off advertising, of which it shares a portion of with, on a per-page-view basis, with its content producers. This would be a factor that would weight against a fair use ruling in Court.

But Examiner.com itself would not be an attractive target for a shakedown in the manner of Righthaven’s suits, because they presumably have the money to hire lawyers, and would be more interested in protecting their overall business model than they would be in a quick settlement. It would be very interesting to find out, also, whether Examiner.com would be able to claim immunity under the safe harbor provision of theÂ DigitalÂ Millenium Copyright Act. I would tend to doubt it, but the line between service and content providers is getting increasingly less clear.

Health Care Constitutionality

The Obama Administration seems to be intent on arguing the health care mandate is a legitimate exercise of Congress’ taxing powers. But noted over at Volokh:

The tax is not an excise tax, and it could not be a constitutional excise tax because it is not uniform. The tax is not an income tax, and it could not be a constitutional income tax, because it is not a tax on derived income. Accordingly, the tax must be a capitation or direct tax. Article I, section 9 provides: â€œNo capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.â€ The tax is not apportioned, and therefore is contrary to Article I, section 9.

I think the strongest argument is that the mandate is necessary and proper in order to carry out Congress’ national regulatory scheme of health insurance under its commerce powers. That’s not to say I think that argument is correct, but it seems to me that the tax argument is an easy loser, while there is at least a plausible argument for the necessary and proper clause supporting Congress’ commerce powers.

But hey, I’m not going to complain about the Administration hanging its hat on the wrong argument.

P.S. – Congratulations to Dave Kopel for his Emmy.

Could McDonald v. Chicago Be Narrowed?

McDonald is an example of what you can call a voting paradox. Why? Because despite the fact that Chicago won on both its arguments, it still lost the case. Won on both it’s arguments? Has Sebastian lost his mind? Well, yes, a long time ago, but let me explain. Chicago argued that the Second Amendment was not applicable to the states because of the Privileges or Immunities clause. It won that argument 8-1. It also argued that it was not applicable via the Due Process clause either. It won that argument 5-4. But it still lose the case because Thomas concurred in judgement. The Supreme Court, in the case of Marks v. US created a rule to attempt to deal with plurality decisions. David Cohen, over at The Faculty Lounge, gives us some analysis of McDonald and the Marks rule, and determined it can’t apply to the decision. Interesting. I’m not sure I fully understand what the implications are, but interesting.