Law – Page 17 – Shall Not Be Questioned

Transcription Errors

The big buzz happening now, which SayUncle and Dave Hardy are reporting on, is that the version of the Amendment that forces Amtrak to allow guns to be transported in checked baggage that was actually passed by Congress, and what was sent to President Obama for his signature are different.

As to what happens from here, I seemed to recall in arguments with tax protesters from years ago reading about Supreme Court case that addressed this very topic. The case is Field v. Clark, 143 U.S. 649 (1892):

The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two Houses of such bill as one that has passed Congress, and when the bill thus attested receives the approval of the President and is deposited in the Department of State according to law, its authentication as a bill that has passed Congress is complete and unimpeachable.

So I’m pretty sure that it’s valid law until Congress fixes the problem.

A Very Gunnie Christmas

Good news for those looking to snag a copy of Aiming for Liberty – it’s back in full stock at Amazon.

But, as I was looking (and laughing) at the “Customers Who Bought This Item Also Bought” section. It made me think that Amazon should have an “Authors Recommend More Reading” section. That would be interesting to see what authors who write great books suggest for further reading on a topic. Then I remembered, “Wait! Hottie Dave has given us just such a guide in a previous NRA mag!”

Here are the links for those who wonder:

Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie by Clayton Cramer – Come on, support another blogger! Actually, there’s news on this front. I didn’t realize that the paperback just came out in August. So now you can save some money and still grab a great read.
Supreme Court Gun Cases by Kopel, Stephen Halbrook, and Alan Korwin – Unfortunately, this one seems to be out of print, or at least Amazon isn’t carrying it much anymore. However, a related topic book that might be of interest is Brian Doherty’s Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment.
Target Switzerland: Swiss Armed Neutrality In World War II by Halbrook – From Kopel: “Halbrookâ€™s book shows not only how the Swiss militia system deterred the recurrent threat of Nazi invasion, but also how the militia system created, in the long run, a culture of civic responsibility devoted to the preservation of liberty. It was Switzerlandâ€™s militia-centric culture of republican virtue that was the key reason why liberty survived in Switzerland, even as it was extinguished almost everywhere else in continental Europe.”
Origins and Development of the Second Amendment: A Sourcebook by the infamous David Hardy – Since the book is out of print, you might consider “In Search of the Second Amendment” instead.
Gun Control and the Constitution: Sources and Explorations on the Second Amendment edited by Robert Cottrol – Prof. Cottrol is at the top of my list of absolutely fascinating people. I don’t event need to actually hold a conversation with him, just listening to him always keeps my attention regardless of the subject. Alas, the book is only available directly from Amazon in the library binding which is $150.
The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace edited by David Young – Again, support yet another blogger! This has been cited in important cases, including several times in Heller. Again, not widely available, but some order information does appear on this page. One of the more entertaining sights I’ve seen though is David carrying his copy of the book with important arguments marked with multiple colors of post-its.
Targeting Guns: Firearms and Their Control by Gary Kleck – Kleck’s research is a staple of many pro-gun arguments. Yet how many people have actually read him? Heh, thought so.
To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcolm – Another recommended read to supplement Malcolm’s book is her sequel, Guns and Violence: The English Experience.
Death by “Gun Control”: The Human Cost of Victim Disarmament by Aaron Zelman – I don’t know much about it, so I’ll just quote Kopel: “The book examines the 20th century genocides in Turkey, the Soviet Union, China, Guatemala, Cambodia, Uganda and Rwanda, and details how each of them was preceded and facilitated by gun control programs to disarm the victims.”
The Global War on Your Guns: Inside the U.N. Plan To Destroy the Bill of Rights by Wayne LaPierre – Since you can order directly from NRA and support the fight in your purchase. Â Two birds, one stone, yay!

Other suggestions Kopel includes: For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms by Cramer, Gun Laws of America by Korwin, Swiss and the Nazis: How the Alpine Republic Survived in the Shadow of the Third Reich and That Every Man Be Armed by Halbrook, The Second Amendment Primer: A Citizens Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms by Les Adams, Michael Moore Is a Big Fat Stupid White Man by Hardy, and Armed: New Perspectives on Gun Control by Kleck and Don Kates.

And finally, if you’re literally looking for a very Gunny Christmas, R. Lee Ermery’s site actually has Gunny dolls.

I promise, this wasn’t just an excuse to do an Amazon link dump. Â I really did wonder about what authors would recommend to their readers other than other books they have written. Â I assume if I was curious about such things that others would be, too. Â Since I remembered Kopel’s article from a couple of years ago, but didn’t have a solid link list, I figured now was a good time to create one. Â Finally, I have been busy making Christmas ornaments and reading of some chick lit, so I haven’t been doing much as much blog reading. Â (Oh yeah, and I may have recently been perusing related titles in my search for Christmas gifts for both a gun nut and a history buff [the gun nut’s dad].)

Right to Arms in Pennsylvania History

Dave Kopel talks about a law review article that will be appearing in the Widener Law Journal next year, coauthored with Clayton Cramer,Â on the history of Pennsylvania’s right to bear arms provision in the 1776 constitution. I covered a bit of the constitutional history of Pennsylvania’s right to bear arms provision back in September, for those who might have missed it. The 1776 version read:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Seems hard to believe that anyone could read “defence of themselves” as being purely the right to participate in a militia. While it’s not as direct and to the point as the 1790 and subsequent state constitutions, it’s still pretty crystal clear for anyone who hasn’t already made up their mind about there being no real individual right.

Looking at the Brady Brief

The Brady Center to Prevent Gun Violence brief was put online today, and can be read here. Joe Huffman already notes a serious contradiction within its fundamental argument. There are a few things that stood out to me as well. Â Note that my criticisms here are a layman’s criticism, and can’t be taken as a serious view of the brief’s legal merit. But I will have a go. From the Brady Center brief:

Such firearms regulations are paradigmatic examples of the exercise of state â€œpolice powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.â€ Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (internal quotation marks omitted). Because of the gravity of the statesâ€™ responsibility to protect public safety and welfare, they are generally afforded â€œgreat latitudeâ€ in exercising those police powers. Id. Firearm regulations are clearly an appropriate exercise of those powers, for the â€œpromotion of safety of persons and property is unquestionably at the core of the Stateâ€™s police power.â€ Kelley v. Johnson, 425 U.S. 238, 247 (1976).

Gonzalez v. Oregon was a case that involved the applicability of the Controlled Substances Act to Oregon’s “Death with Dignity” law. The context of the case had nothing to do with fundamental rights, and everything to do with the powers delegated to the Attorney General under the CSA vs. the state police power. Additionally, Kelley v. Johnson is a case from 1976 that had to do with whether a police officer had a fourteenth amendment right not to cut his hair per the regulations of his department. Forgive me if these cases don’t seem to shed any light over what kind of deference the state police power ought to be given when it comes to Second Amendment rights under the 14th Amendment.

The forceful governmental interests in protecting public safety and welfare that justify the statesâ€™ exer- cise of their police powers can also justify limitations on the exercise of constitutional rights. This is particu- larly true when the exercise of the right at issue in- volves conduct that affects the welfare of the commu- nity. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304, 308 (1940) (Although the First Amendmentâ€™s Free Exercise Clause protects both the â€œfreedom to believe and freedom to act,â€ â€œ[t]he first is absolute but … the second cannot be.â€)

Cantwell was the case that incorporated the First Amendment’s free exercise of religion under the Fourteenth Amendment. But what’s really amusing is that the statute at question was whether the State of Connecticut could require a license for those soliciting for religious or charitable purposes. Get that? Whether they could license a fundamental right, and the answer was no. The Brady’s are even cherry picking the quote. The full quote from the ruling is:

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, theÂ second cannot be. Conduct remains subject to regulation for the protection of society.Â The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

Emphasis mine. Give a bit of a clearer picture as to what the court was saying? So clearly, applicable to the Second Amendment, one doesn’t have the right to rob, brandish, or threaten with a firearm, just because one has a right to keep and bear. But the power to regulate this “freedom to act” must not “unduly infringe on the protected freedom.” The Cantwell Court goes further to say:

Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.Â The state is likewise free to regulate the timeÂ and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

That contrasts sharply with the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to establish how we are to protect this important fundamental and enumerated right. This is just one brief aspect of the brief, but there is no doubt much more that could be picked apart. I will leave that for others who are more skilled an qualified on legal matters than I am.

Duty to Retreat in Common Law

With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.

But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:

Burglary, or nocturnal housebreaking, […] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger […] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]

Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:

In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.

Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.

Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him […] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.

Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.

More on the Missouri Supreme Court Decision

I had a nagging feeling that I had read about the topic of my previous post, intoxicated possession at home, before. Sure enough, managed to find this in Eugene Volokh’s Law Review article that discusses a framework for implementing the Second Amendment (Original post at Volokh.com here):

Many states bar possession of a firearm while intoxicated. Now a drunk man may need self-defense as much as the rest of us, and perhaps even more.385 But he is also especially likely to endanger innocent peopleâ€”whether bystanders or people whom he mistakenly identifies as threatening himâ€”and he is especially unlikely to successfully defend himself.386 And to the extent that the scope of the right to bear arms has historically excluded the mentally infirm, there seems to be little reason to treat those who are briefly mentally infirm as a result of intoxication differently from those who are permanently mentally infirm as a result of illness or retardation.387

A difficulty would arise if the law covered not just gun handling or carrying, but gun possession in the home while the homeowner is home and intoxicated. If every gun owner becomes a felon when he drinks too much at home, or must somehow find a friend who will soberly store the gun elsewhere on such occasions,388 then millions of people will be felons.389

Itâ€™s not entirely clear how this problem fits with the constitutional framework outlined above. My inclination is to say that while there may be a strong enough tradition of treating the mentally infirm as too unreliable to possess guns, and the tradition might extend to treating the temporarily mentally infirm as similarly too unreliable, the tradition likely doesnâ€™t extend to a usually sober personâ€™s possession of a gun in his home while heâ€™s drunk. I would also think that requiring gun owners to refrain from normally accepted social drinking practices, to do all their serious drinking outside the home, or to temporarily move their guns outside their homes on party nights creates a substantial burden. But at the same time people can avoid or sharply decrease this burden by entirely or largely refraining from a behavior that, while legal and socially acceptable, is hardly necessary or praiseworthy; perhaps that should affect our judgment about the burdenâ€™s substantiality.

Fortunately we can largely avoid this issue, at least for now, since nearly all the statutes on the subject cover only â€œcarry[ing]â€ or â€œpersonal possession.â€390 The one exception that Iâ€™ve seen, the Missouri statute stating that a person is guilty of a crime if he knowingly â€œ[p]ossesses or discharges a firearm or projectile weapon while intoxicated,â€391 is likely just inartfully drafted: Though accompa- nying statutes use â€œpossessesâ€ broadly, likely broadly enough to include storing inside oneâ€™s home,392 this statute is labeled â€œUnlawful use of weapons,â€ and generally covers discharging, carrying, or brandishing a weapon (or setting a spring gun). I expect that Missouri courts would therefore narrowly interpret â€œpossessesâ€ in this statute, as covering only having on oneâ€™s person and not simply having a gun stored somewhere in the home.

You can read the Missouri Supreme Court decision here. Looks like Richard asserted it was overbroad, and the Court in this case refused to apply that doctrine, saying its use was limited to the First Amendment. It further refused to recognized the Second Amendment as incorporated, and proceeded with its analysis under the Missouri Constitution. The Missouri Supreme Court actually reversed and remanded based on standing to raise a constitutional issue given the facts in the case:

Although section 571.030.5 sets out a specific exception to the rule barring possession or discharge of a firearm while intoxicated, where the person is defending himself or others, Richard argues that the statute could be applied in a manner that effectively would prohibit an intoxicated person from possessing a firearm in the home for lawful self-defense. There is, at this point, no self-defense issue in this case. Richard has no standing to raise hypothetical instances in which the statute might be applied unconstitutionally. Lester v. Sayles, 850 S.W.2d 858, 872-873 (Mo. banc 1993). Richardâ€™s claim must be analyzed under the facts of this case. Under the facts of this case at this stage of the litigation, his constitutional claims fail.

The circuit court erred in dismissing the stateâ€™s information charging Richard with violating section 571.030.1(5). The judgment is reversed, and the case is remanded.

So this ruling would appear to hinge exclusively on the facts in this particular case, rather than being a broad ruling that would affect all gun possession in the home while a person in the home was intoxicated. The Missouri Supreme Court doesn’t seem to want to consider that the statute is facially unconstitutional, but would seem to indicate some willingness to hear a constitutional challenge by someone who can raise a legitimate constitutional claim regarding self-defense in the home.

I’m still inclined to believe the statute is over broad. The exception for self-defense only applies if one is actively engaged in self-defense under 563.031, RSMo. The courts can certainly carve out an area of constitutionally protected possession here, but the Missouri Legislature should really have taken more care when drafting this law.

Dave Kopel Bleg on Transient Possession

Dave Kopel is looking for some information:

I am asking for commenters who can point to similar cases in the U.K., United States, or elsewhere. For example, a student finds a knife on a playground at school; she picks it up and takes it directly to a teacher. She is expelled for possession of a weapon on school property. Iâ€™m not looking only for cases involving weapons.

The case that immediately came to my mind was the case of US v. Baker in the 10th Circuit. Mr. Baker saw a loaded speed loader for a revolver laying on the ground, which had been previously stolen. He took this item into his possession for fear children would find it, intending to turn it over to police. But police stopped him, and found it before he could turn it over. He asked that the jury be allowed to get an instruction about innocent possession, which the panel denied. Looking a bit further, in a case with very similar facts,Â this would also appear to be law in the 4th Circuit as well. There wouldn’t appear to be an innocent possession exemption to the felon-in-possession statutes, but one wonders whether a felon-in-possession could claim a necessity defense under some circumstances.

You Can’t Blame Tiahrt

This blogger seems to think the Fort Hood tragedy was all about Tiahrt, but he’s wrong. What he bases that on would seem to be a section from this article:

In August 2009, Hasan purchased two firearms that he used to carry out the attack, but the government officials said that U.S. law does not permit them to connect that purchase information with the other intelligence they had.

This has nothing to do with Tiahrt, but to understand why that is, you have to understand what the Tiahrt does, and know something about our federal gun laws. I’m not going to automatically assume malice on the part of this blogger, but rather just attempt to point out the problems.

In order to buy a gun in this country at retail, as Hasan did, you have to fill out a ATF Form 4473 and be cleared by the National Instant Check System. Some states have additional forms, and other states are what are called “POC (Point-Of-Contact) States”, which means they use their own state level background check systems in lieu of the federal one. The dealer is then required to keep form 4473 on file. NICS, by law, does not keep records of people who pass the background check. The law only allows records to be kept of those who fail. There is no giant red siren that goes off at CIA or FBI if someone they are currently investigating tries to buy a gun. This isn’t hollywood.

In the event a gun is recovered at a crime scene, law enforcement can file a trace request with the ATF in order to find out who the last legal purchaser of that firearm was at retail. In order to do that, ATF starts with the manufacturer, who traces it to the distributor, who traces it to the retailer. The retailer then goes and fetches the 4473 they have on file, turns over the information and if necessary the form, and the trace is complete. Law enforcement can use this data any way that is necessary and proper within the course of a legitimate investigation of a crime, or in the prosecution of a criminal for violation of laws.

What Tiahrt does is prevent ATF from spending any funds to share the entire trace database with third parties not related to a bonafideÂ criminal investigation. It also makes the trace database undiscoverable in a civil action, and inadmissible in a civil suit. Both ATF and the Fraternal Order of Police support this measure, something MAIG won’t tell you. It does not require that NICS records be destroyed. The requirement that NICS records be destroyed is not a funding matter, but is found in the United State Code, Title 18, Section 922(t):

(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall –
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.

This is federal law that was instituted as part of the Brady Act, which established the background check system to begin with. Since Hasan had no criminal record, his background check was not saved by the system. The FBI hasn’t always been good about following the law on this, but it’s the law, and it has nothing to do with Tiahrt. MAIG’s assertion that Tiahrt requires NICS records to be destroyed is false. It’s the Brady Act itself that requires it.

Bringing Law to the Masses

Dave Kopel has an interesting piece in the Denver University Law Review on using blogs to bring law to the masses. Law is not a subject I knew much about until I started reading legal blogs, and then once I got into Second Amendment law, I devoured as much on the subject as I could read.

I think law is something that comes rather easily to engineers, since it’s basically just boolean logic system, but written in plain English. If (A || B || C) && !D && !E is true, you’re violating the statute. There is a system to it, and legal structures are less complicated than even simple microprocessors. Law also has obscure exceptions to generally given rules, which is something you also come across a lot in computer engineering. Computer engineers deal with bugs, just as judges must deal with poorly drafted legislation that yields absurd, clearly unintended results.

To a thought process that’s heavily oriented towards systems and logical structure, law provides, in many ways, much more interesting puzzles and conundrums. Unlike with circuits, where there’s just a right way and a wrong way to do things, law provides much more opportunity for philosophical exploration.

Guns as Smut

Eugene Volokh refutes a line of reasoning that tried to argue that guns rights could be limited only to the home by making first amendment analogy to obscenity laws. Having lost on the big question, those who disagree with the Second Amendment will now try to do their best to limit its scope. Folks like Eugene Volokh will be important for our side in fighting that battle within the legal community.