Law – Page 15 – Shall Not Be Questioned

Dry Ice Bomb a DD?

The mother of a 14-year-old boy accused of making bombs out of dry ice appeared in court Tuesday.Â The woman, 39, is charged with possession of a destructive device and child abuse. She was arrested over the weekend and released on her own recognizance.

Wait a minute, since when is a dry ice bomb a destructive device? But sure enough, look at Nebraska law and it defines it as:

Any explosive, incendiary, chemical or biological poison, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, (F) booby trap, (G) Molotov cocktail, (H) bottle bomb, (I) vessel or container intentionally caused to rupture or mechanically explode by expanding pressure from any gas, acid, dry ice, or other chemical mixture, or (J) any similar device, the primary or common purpose of which is to explode and to be used as a weapon against any person or property; or any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subdivision (7)(a)(i) of this section from which a destructive device may be readily assembled.

So it would seem if you pick up some dry ice for your freezer in Nebraska, you better not have any bottles or sealable containers! But there is a section that would get most people out of trouble:

(b) The term destructive device does not include (i) any device which is neither designed nor redesigned for use as a weapon to be used against person or property, (ii) any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device, (iii) surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to 10 U.S.C. 4684(2), 4685, or 4686, as such sections existed on March 7, 2006, (iv) any other device which the Nebraska State Patrol finds is not likely to be used as a weapon or is an antique, or (v) any other device possessed under circumstances negating an intent that the device be used as a weapon against any person or property;

But it’s interesting that the Nebraska Unicameral considers a dry ice bomb, normally a prank device, to be the equivalent of heavy artillery or weapons of mass destruction legally.

I meant to post this earlier, but I’ve been distracted by a few things – including talking to a potential new addition to the EVC program in Pennsylvania. Woo hoo. But, I’ve also been trying to keep up with the Kagan hearings. What’s interesting is that as I was reading Dave Kopel’s testimony on Kagan, I heard his concerns brought up by Sen. Jeff Sessions.

The unfortunate lesson of the confirmation of Justice Sotomayor is that Senators who care about the Second Amendment cannot rely on platitudes about “settled law” or even direct promises to abide by Heller. Before this Committee, Ms. Sotomayor declared, “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.

To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”

Yet on June 28, 2010, Justice Sotomayor joined Justice Breyerâ€˜s dissenting opinion in McDonald v. Chicago, and announced that Heller was wrongly decided and should be over-ruled. Apparently her true belief was not what she told this Committee, but instead: “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

So by “settled law,” nominee Sotomayor seems to have meant “not settled; should be overturned immediately.”

Accordingly, statements from Ms. Kagan about Heller being “settled law” provide not an iota of assurance that as a Justice she would support Heller, rather than attempt to eliminate it.

Juries Must Decide on Machine Gun Possession

The government made the claim that the federal law providing for a thirty year sentence for the commission of a crime with a machine gun was a sentencing enhancement, and therefore whether the gun was a machine gun could be decided by a judge by preponderance of the evidence, and applied during sentencing. The Supreme Court has ruled against the government’s position, ruling that the federal law in question 18 USC 924(c)1(B)(ii) was a separate federal crime, and that it had to be charged in an indictment and proved beyond a reasonable doubt to a jury.

Not much of an effect on gun owners here, unless you plan to rob a bank with a gun the feds later claim to be a machine gun.

GRE Boycott of Marriott is Premature

I’m not going to join in the Gun Rights Examiner boycott of Marriott, because I think Marriott’s interpretation of North Carolina law is plausible, and I think the Examiners are missing the important issues. I’m not going to pretend to be an expert on North Carolina law, and hold out the possibility that there might be case law that validates the Examiners’ position. But people need to understand case law before jumping to conclusions, and calling for boycotts, because it’s not individuals or corporation who determine the law, it’s judges. It is not my purpose here to assert that the Examiners are definitely wrong, but to take folks through the process of understanding how law works. I will leave it to the readers to comment as to who’s right or wrong.

The Examiners are taking one interpretation of North Carolina law, Marriott is taking another. I am not a lawyer, but I know something about Firearms Law, and if I were advising a friend on this matter I would say a Hotel with a license to serve alcohol is a prohibited place under North Carolina law. That’s not the only interpretation, but it’s the safe interpretation. Why it’s safe has to do with how law is made. First, let’s begin with the statute:

Â§ 14â€‘269.3.Â Carrying weapons into assemblies and establishments where alcoholic beverages are sold and consumed.

(a) It shall be unlawful for any person to carry any gun, rifle, or pistol into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed.Â Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

(b) This section shall not apply to the following:

(1) A person exempted from the provisions of G.S. 14â€‘269;

(2) The owner or lessee of the premises or business establishment;

(3) A person participating in the event, if he is carrying a gun, rifle, or pistol with the permission of the owner, lessee, or person or organization sponsoring the event; and

(4) A person registered or hired as a security guard by the owner, lessee, or person or organization sponsoring the event.Â

What does “sold and consumed” mean? What areas does that encompass? You can say that’s common sense, but common sense won’t save you from a prosecutor and a judge who hate defensive carry looking to make an example and set some anti-gun case law.

I’ve tried to look for what case law there exists on the meaning of this, but I’ve been unable to find any. There have been prosecutions under Â§ 14â€‘269.3, but none of them involve anythingÂ ambiguous. The fact of the matter is that you can purchase alcohol at the hotel bar, and probably from room service, and consume it anywhere in the hotel. If I were advising a friend on this, I’d be very uncomfortable telling him that the only place off limits from carry is the bar area. The law says “sold and consumed” without specifying a scope for that. Mr. Valone relayed a story about asking the hotel desk whether he could buy a drink from them. It’s a novel argument. Maybe it would hold up in court. But would you be comfortable making that argument in court before a judge and jury? Because that’s the only way you can settle things like scope and meaning.

Marriott may not have been entirely correct in how they are framing the issue, because I doubt their PR flack is familiar with firearms law. And the Examiners are quite correct that North Carolina law does not require posting on theÂ premises, but Marriott’s assertion that it is unlawful to carry anywhere in their hotel is not an unreasonableÂ interpretationÂ of North Carolina law. If they don’t wish to have their customers arrested and prosecuted, then posting the legal requirement is not an unreasonable action on their part. If the Examiners can show me some case law that shows that the scope of the prohibition is as narrow as what they say, then I’ll relent. But until then I’m going to suggest that a boycott is premature, and their energies would be best sent in the direction of Raleigh, where pressure could be put on the people who actually have the power to change this bad law.

UPDATE: I should probably also address the issues created by Â§ 14â€‘415.11. I do not believe anyone who was carrying a firearm in the building, unaware that they had posted signs, is going to be liable for a crime. The statute itself requires “conspicuous notice” and when conventioneers entered the hotel, no notice was present. Their adding notice after folks were already in the building doesn’t amount to notice per this law. Generally speaking, you need to be aware you’re committing a crime in order to be charged under it (with some exceptions). You’re on much much firmer ground here than you would be if charged under Â§ 14â€‘269.3. If GRNC had wanted to, could it have bought alcohol from the Hotel for their GRNC event and had it delivered to that room? Drank it there? I’ll bet the answer is yes.

UPDATE: Howard Nemerov notes that his local Marriott hotels seem to follow state law. The question is what corporate policy is. If they banned concealed carry, I would jump on board with not doing business with them, but following local law is reasonable, and after doing a bit more research on North Carolina’s ABC statutes, it’s illegal to carry in a hotel in North Carolina that has a liquor license for on-premises consumption, which is most halfway decent hotels. Interestingly, if it was a hotel with an attached restaurant, you’d probably be fine, because you can’t legally take alcohol out of the restaurant and drink it (except at home or in your hotel room). But if the hotel has a bar, you can’t really carry.

UPDATE: They may be required to post, if you look at this section of North Carolina’s liquor laws.

It shall be unlawful for a permittee or his agent or employee to knowingly allow any of the following kinds of conduct to occur on his licensed premises: […]

(3) Any violation of the controlled substances, gambling, or prostitution statutes, or any other unlawful acts.

This is not an explicit demand to post signage about concealed weapons being prohibited, but I could see a lawyer believing that posting was the safe route. If they allow unlawful activity to occur in their hotel, they couldÂ jeopardizeÂ their liquor license. I’m going to admit this is a stretch, but corporate lawyers are notoriously cautious about exposing their employers or clients to risk.

Gun Ownership by Pardoned Felons

Dave Hardy points to a story coming out of Tennessee on the topic here. Dave mentions it’s a separation of powers question, as to whether the legislature can interfere with the Governor’s powers to pardon. I notice in the article there’s out-of-state issues too:

The attorney general opinion said that Tennessee does not recognize the pardons from anywhere in the country, including with the state, as grounds for restoring gun rights.

I would imagine that could also implicate the Full Faith and Credit Clause of the Federal Constitution as well. There have been a few circuit court decisions on this, one of them in the fifth circuit, which is next door to the 6th, which Tennessee is in. There they ruled that full faith and credit is implicated in pardons, and that the state in which the pardon is issued is controlling:

Next we reach the question whether Louisiana may constitutionally refuse to give the same effect to a pardon granted by another jurisdiction that it would give to its own pardon under the Habitual Criminal Act. We are of the opinion that this would violate no constitutional principles. There is clearly no question here of a violation of the full faith and credit clause, since Louisiana has given the same effect to a Missouri pardon that a Missouri court would give it.

That implies there could be a FFAC issue, I think, but it would depend in the state in which he was pardoned, and whether they had a similar provision to Tennessee. The Circuit Court of Appeals implies in this case that no more credit need be given than is given in the pardoning state. In another neighboring Circuit, the 7th, they ruled differently. This case actually involves firearms law, but it’s a bit different, because it involves the federal consequences of a conviction versus a state pardon. Not state consequences of a conviction versus a pardon from another state:

In his complaint, plaintiff characterizes the refusal to license him as a failure to give full faith and credit to the Montana pardon. Article IV, 1 of the Constitution, concerning ‘public acts, records, and judicial proceedings,’ speaks only to the states. By statute federal courts must also accord full faith and credit to state legislative acts and judicial records and proceedings. 28 U.S.C. 1738. However, it is open to question whether the full faith and credit clause extends to requiring a state court to treat a sister state’s pardons as eradicating guilt for the purpose here involved, even if the issuing state gives them that effect.

This seems to me to be very much an open issue, and it would be interesting to see a case like this go forward. In the case of someone who was convicted and pardoned in Tennessee courts, that would be solely a state issue, but in the case of someone moving to Tennessee who was pardoned by the Governor of another state, you bring federal issues into play under FFAC.

UPDATE: Dave Hardy has more thoughts here.

Takings Clause and the Second Amendment

Eugene Volokh takes a look at the case of US v. Edward L. Brown. The question seems to be whether the Court can order a collection destroyed after the collector is convicted of a felony, or whether the collector is permitted to transfer the collection:

For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the governmentâ€™s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process ofÂ law….

The Court seems to have argued that the government can direct the liquidation of the collection for the convicted person’s benefit. Meaning the government directs the collection to be sold, with the proceeds going to the convict. This would seem to me to be the fair way of going about it.

This is all assuming it’s a case where the firearm isn’t subject to forfeiture, or is contraband. Obviously if a collection of guns is pulled off a drug dealer, those guns are subject to forfeiture, along with other property used in furtherance of the crime. Another case would be an unregistered machine gun, being contraband, could just be taken.

Free Beer! Free Our Beer!

There are multiple fronts in the war on free beer in Pennsylvania – free beer in the liberty sense, not in the free sample sense.

First, the issue of grocery stores selling beer was heard in the Supreme Court yesterday. See, grocery stores are banned from selling beer in Pennsylvania. We’re only allowed to buy beer in bars/cafes no more than 2 six-packs at a time or from distributers who can only sell massive freakin’ boxes of the stuff. It’s for the children – and to prevent alcoholism. I’m not sure how forcing people to walk into a bar or buying in bulk reduces alcoholism rates, but it’s a case that has been made by proponents of the current system. But then Glorious Wegmans got all uppity on the distributers. They realized that each of their grocery stores has a cafe. Food and beverages are sold for on-site consumption in one corner of their store, and Wegmans decided they would be happy to allow beer to be consumed as well. No reason you can’t enjoy a good beer with your pizza, right? In order to comply with state bureaucrats, Wegmans put up fences and gates around the new beer sections, and all purchases must be made at special registers, separately from the rest of your groceries.

The Wegmans system is by no means convenient for beer lovers, it’s just one less trip in the car. If you don’t visit the store in the right order, you still have to make multiple trips into the store through special doors. It is stupid, but at least it reduces our carbon footprint or something. But the beer distributers demand higher carbon footprints and mandatory bulk sales or skeezy bar visits for all! And so the Supreme Court will decide we lowly taxpayers can be trusted to buy our beer in a building with unprepared food. John Micek reports that there is no anticipated date for a decision and encourages folks to drink up while they can.

In other news, a hearing on the overzealous “unregistered” beer raids was held this week with some surprising and not-so-surprising results. Because bureaucrats don’t have to pass any sort of literacy test, they actually stole a bunch of beer that was perfectly legal and registered. But there were some bottles which were non registered, so the whole fiasco hasn’t gone away. Oh, and not to mention it involved the state police who were fully armed and acting like it was a drug raid.

Philly Republican Rep. John Taylor went further.

While questioning [State Police Bureau of Liquor Control Enforcement chief Major John] Lutz, Taylor expressed support for the state police but said, “In this one you and your unit were wrong . . . they knew when they were going in there they did not need four armed agents. A teenager with a clipboard could have done what they did.”

Taylor called the bust “an over-use of force,” and said, regarding priorities, that “those of us from Philadelphia have plenty [other things] for you to do.”

Lutz shot back that there was unregistered beer.

“So what! So what!” shouted Taylor. “Use a clerk to do that!

I say cut his funding. If he has fully armed cops to spare for a job that could take a recent college grad with no training and a clipboard (who would probably do a better job of identifying beer anyway), then it’s time to start making cuts.

Also interesting is the fact that they were actually questioned as to why state police stole lawful beer from the bars before actually checking to see if it is registered.

Sen. John Pippy, R-Allegheny County, asked why they’d seized brew before confirming it’s unregistered?

“Historically, the beer was always seized,” answered Lutz.

Yeah, or un-kegged with axes.

Got that? They can steal your car before they actually make an effort to find out if you really bought it. And if they screw it up, too bad. It’s on your dime.

Unfortunately, lawmakers being what they are, their solution to avoid this in the future is more regulation. They want breweries (who are supposed to register the beer) to start putting special barcodes on all beer so that they can send in a kid with a scanner who doesn’t have to think to check on beer registration status. For the big breweries, they will wholeheartedly endorse it. They can afford to make the changes without a huge hit to the bottom line. Smaller breweries, not so much.

It’s time to dismantle the entire system. No more regulatory capture, no more favors for unions, no more creating monopoly industries, no more.

Parallels

Dave Kopel notes some similarities between how the media is treating the argument over Obamacase’s constitutionality, and how they treated pro-individual-rights Second Amendment scholarship.

Dave has another interesting post on Obamacase here, which are follow ups to discussion here and here.

More on the New Jersey FOPA Case

There’s probably some things I should clear up on the FOPA case in the Third Circuit. This was not a criminal prosecution. This was a civil rights lawsuit filed under 42 USC Section 1983, part of the Civil Rights Act of 1871. That changes things considerably from a criminal prosecution. The criminal charges against Mr. Revell were dropped.

In order to sue a police officer in his personal capacity, you have to overcome qualified immunity. To do that you have to show the officer acted under color of law in violation of clearly established precedent. That’s a tough nut to crack. TheÂ plaintiffÂ here, Mr. Revell, argued that FOPA’s peaceable journey language in 926A created an enforceable personal right. The Circuit Court upheld the District Court’s ruling that it could not, and that theÂ plaintiffÂ had to proceed with the suit on Fourth Amendment grounds. That means arguing the officer did not have probable cause to make the arrest. Since the Circuit Court found the arresting officer’s interpretation of the statute correct, they ruled that he had probable cause to make the arrest and retained his immunity against suit.

I should note that based on the courts interpretation of the FOPA safe harbor provision, it would even be unlawful if, traveling by car, you stopped in a hostile jurisdiction for an overnight stay. Ironically, if you left the gun in the trunk of the vehicle, where it could be stolen, you’d actually have a better case that you were still protected by FOPA than if you took the locked case into the hotel room for safe keeping. This is an absurd result, but the safe harbor provision is unfortunately narrow in its wording. This would be one of the provisions that the NationalÂ ReciprocityÂ Act would fix.

Popular Constitutionalism

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

â€œIt really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens.Â Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.â€

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call â€œpopular constitutionalism.â€ â€œBasically, itâ€™s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,â€ Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent.Â From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?

Category: Law