Shall Not Be Questioned – Page 65 – The right of the citizens to bear arms in defense of themselves and the State …

Senator Hatch’s Transport Bill is a Nice Thought, But Useless

Senator Orrin Hatch has introduced S.618, which purportedly enhances the FOPA safe travel provision, but this bill suffers from the same flaw that the Manchin-Toomey version did:

(b) In subsection (a), the term â€˜transportâ€™â€”

(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, or any other activity incidental to the transport; and

(2) does not include transportationâ€”

(A) with the intent to commit a crime; or

(B) with knowledge, or reasonable cause to believe, that such a crime is to be committed in the course of, or arising from, the transportation.

(c)(1) A person who is transporting a firearm, ammunition, magazine, or feeding device may not be arrested or otherwise detained for violation of any law or any rule or regulation of a State or any political subdivision thereof related solely to the possession, transportation, or carrying of firearms, ammunition, magazine, or feeding device unless there is probable cause to believe that the person is doing so in a manner not provided for in subsection (a).

I think they need to make it much clearer that subsection (b)(2)(A) and (B). It is a crime to transport hollow point ammunition through New Jersey. It is a crime to transport a 15 round pistol magazine through New York. It is a crime to possess any firearm in Washington D.C. if you’re not a resident of DC and have not registered it. So when someone transports through these states, they are technically committing a crime in that state. Also, people will tend to have firearms discovered when they got pulled over for a traffic offense, which is technically a crime. Do you lose protections then?

I get what Hatch is trying to accomplish here, but given the resistance of the jurisdictions this will apply to, it needs to be iron clad. If the bill gives hostile local judges the room, they will take it.

Hatch probably doesn’t want to surrender the ol’ law & order that Republican love themselves so much of, but I don’t see a way to save (b)(2) that doesn’t risk nullifying the entire purpose of the law. It needs to be removed or this bill is a waste of everyone’s time.

Dems Want Deal on Gorsuch

The Dems are looking for a deal that would allow Neil Gorsuch through without a filibuster, but would preserve the filibuster for further appointments. The dumbest thing the Stupid Party could do is take this deal. Force the Dems to filibuster Gorsuch,Â and use the “nuclear option” if they do. The GOP already know the Dems would have done this to them if they had taken the Senate and White House and we were looking at Hillary’s nominee to replace Scalia. They know because when they thought victory was a lock they said as much.

Personally, I wouldn’t mind compromising on a more liberal originalist like Randy BarnettÂ if one of the Dem appointees on the Court kicks it or retires. But for political reasons, that probably isn’t happening. Neither side wants a justice who will limit government too much.

I’ve thought for a while that they should return to the old filibuster rule that requires the filibustering Senator to actually hold the floor. You’d think Senators would love opportunities to grand stand on issues that are important to voters, especially in this social media driven world.

I Hate This Fiction That Judges Don’t Have Legal Opinions

I can understand why a judge would not want to comment on the merits of a particular case, but could we dispense with the fiction that judges don’t have, or aren’t allow to express opinions on the law?

I’d feel a lot better if he actually answered Feinstein’s questions. She wants to know, and I want to know too.

Challenge to PA Mental Health Prohibition

A lawsuit has been filed in federal court challenging Pennsylvania’s statute that strips anyone committed under Section 302 of Pennsylvania’s Mental Health Procedures Act (MHPA) from possessing a firearm.

In this media environment, where insisting on due process to strip fundamental rights gets spun as, “You want crazy people have guns!,” it’s prudent to cover a bit of background.

Pennsylvania’s Mental Health Procedures Act has three types of commitments. The first is the typical involuntary commitment, under Section 303 and 304 of the MHPA.Â There is some due process involved to commit someone under Section 303 and more under 304. For 303, for instance, the medical professionals have to petition the Court of Common Pleas and make their case before a judge. There is a right to representation by counsel. Section 303 and 304 commitments areÂ not challenged in this case.

But Pennsylvania also has an observational commitment as well, under Section 302. In the vernacular, you will hear this referred to as a “302 Commitment.” For Section 302 commitmentsÂ there isÂ no due process involved whatsoever. All you need to earn aÂ 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital, and for a physician to sign off. Often times people are not evenÂ aware they’ve been committed.

The parties here are both John Does.Â Both, other than their 302 history, are eligible to possess firearms under federal and state law.

John Doe I was bullied at school, lost his girlfriend, got depressed, and was taken to the hospital atÂ 16 by his concerned mother, held for a few hours and quickly released. He did not know he was a prohibited person until later as an adult he tried to purchase a firearm and was denied. The hospital had held him under Section 302.

John Doe II was taken to the hospital by a friend because he was intoxicated and belligerent. He was kept under Section 302 involuntarily until he sobered up and was released. He has since gone through alcohol rehabilitation and now lives a clean life. John Doe IIÂ was also not aware he had actually been held under Section 302Â until he tried to purchase a firearm.

The plaintiffs are represented by Jonathan Goldstein of McNelly and Goldstein. Jonathan is an experienced attorney in firearms law.

As mentioned in the case, Pennsylvania law does not require that the examining physician have any specific mental health training, only that they are licensed to practice medicine in Pennsylvania. There is no due process whatsoever, as the suitÂ notes:

An individual is not provided the most basic due process protections before being involuntarily committed under the Temporary Emergency Commitment Statute. He receives no pre-deprivation notice of the potential consequences of the hearing; he receives no right to review by a neutral arbiter he receives no opportunity to make an oral presentation; he receives no means of presenting evidence; he receives no opportunity to cross-examine witnesses and respond to evidence; he receives no right to counsel; and he receives no pre-commitment review by a court or a decision based upon a written record.

All it takes is a ride to the hospital and a doctor to sign off. That’s it.

Under the Fourteenth Amendment, government must provide adequate due process procedures before divesting citizens of fundamental rights. Logan v. Zimmerman Brush Co, 455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480, 495-96 (1980); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000).

Seems like it should be a solid case, but these are the federal courts we’re dealing with. The same federal courts have largely said that the Second Amendment is a second class right, not worthy of the same protections, often not even close to the same protections, as other rights. But I think there’s some hope here.

If we look at the last en-banc decision on guns out of the 3rd Circuit, the Binderup case, it was heard before Judges McKee (Clinton), Smith (G.W.), Ambro (Clinton), Fischer (G.W.), Chagares (G.W.), Jordan (G.W.), Hardiman (G.W.), Greenway (Obama), Vanaskie (Obama), and Schwartz (Obama), Fuentes (Clinton).

Fischer (G.W.) is up for replacement. But so are Julio Fuentes’ (Clinton) and Marjorie Rendell’s (Clinton) seats. Binderup did pretty well on a more heavily Dem appointed panel. If Trump can replace the three vacancies with solid judges we may have a decent chance with this case.

Fact Checkers: ARS Full of It

When even the biased Fact Checkers say you’re full of crap, you’re full of crap. It looks like Gifford’s ARS backtracked with a “Well, it could still make a gun ‘silent’ in really loud places.”

In the meantime, although the popular name of this accessory is a silencer, foes of the law such as Gillibrand should not use misleading terms such as â€œquietâ€ to describe the sound made by a high-powered weapon with a suppressor attached. We wavered between Two and Three Pinocchios, but finally tipped to Three. There is littleÂ thatâ€™s quiet about a firearmÂ with a silencer, unless one also thinks a jackhammer is quiet.

The facts are on our side. There’s no reason for the GOP not to pass this sucker.

Administrative Power

I’m often conflicted, because while I fundamentally believe popular sovereignty, IÂ don’t view the concept as particularly good at preserving individual rights. So we have a republican government with lots of checks on its power. At least in theory.Â In practice it’s never really lived up to the ideal, but it probably worked better than many alternatives. But one thing I’ve always loathed is the Administrative State. Some people are now calling it the “Deep State” while others argue such a concept is a figment of right-wing nut jobs imaginations. The Administrative State is very real, and this strikes me as an excellent critique of it:

My scholarship (past and forthcoming) argues that administrative power undermines equal voting rights by shifting much lawmaking power out of Congress into the hands of unelected administrators. My work shows, moreover, that this shift occurred when the knowledge class regretted the boisterous sort of politics that came with equal voting rights. Woodrow Wilson candidly explained that â€œthe reformer is bewilderedâ€ by the need to persuade â€œa voting majority of several million headsâ€â€”especially when the reformer needed to influence â€œthe mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.â€ One could go on at length with such quotes, and certainly administrative power has been dominated by whites of a certain class, but the point is not narrowly about racism. Instead, it is about how a class that expected deference to its knowledge was disappointed with the results of equal suffrage in a diverse society. It therefore welcomed a transfer of lawmaking power out of the elected legislature and into the hands of the right sort of people.

The argument, in other words, is not against an elite, but against the administrative dilution of representative government and equal voting rights. There will always be elites, and this is part of the valuable differentiation that can occur within a free society. Rather than oppose such differentiation, my scholarship suggests that all Americans, even elites, should confine themselves to working through the Constitutionâ€™s representative framework of government.

Hat tip Instapundit.

Saccone to take on Casey

According to CBS Pittsburgh. Republicans have not been doing well in state-wide races, generally, and I question whether Rep. Saccone has enough state-wide name recognition. But I can’t think of anyone better. The PA GOP does a pretty awful job of developing talent and moving them up the ladder. Of the state-wide state offices that are typically stepping stones to Senator or Governor, the Dems now control all of them. Casey’s advantage going against SantorumÂ was name recognition, in that his father, Bob Casey, was a Pennsylvania Governor. Saccone has an uphill climb, so he is going to have to be a stellar candidate. I’d suggest if he can’t learn to channel some of that good ol’ populism that was Trump’s schtick, he’s probably doomed. One advantage Saccone has is he hasn’t been in office all that long. It’s a lot harder to pull off populist everyman when you’ve held office as long as some voters have been alive.

There’s Probably a Window for Passing National Reciprocity

After Obama was elected, you saw a lot of hot air from the right about secession movements. Now with Trump, there’s talk of Calexit and other secessionist movements that are still mostly hot air, but are perhaps a little more serious. I think it’s likely the talk will get a little more serious as the years go on.

I think it’s highly unlikely the United States will crack up, but the world wide trend is away from technocratic edifices like the EU and our own federal system and toward greater decentralization and autonomy. It’s not just here. It’s happening everywhere.

What would be the problem with California independence? The big problem is that California has no means to defend itself unless robot armies start replacing foot soldiers. Would the California Republic get to keep the nukes it has? Would it get to keep the San Diego Naval Base? What about the ships? What about California’s share of the National Debt? You can see the issues.

If you were to take a group of people who didn’t really want to fight a war over these things, and think about what a negotiated partition would look like, it would look an awful lot like the kind of weak federalism enshrined in our Constitution before the reconstruction amendments. That’s probably where we’re going if trends continue. Secession would turn into a sort of disarmament talks… namely disarming the federal government as an instrument of national policy in the name of getting along and preserving a national market and common defense.

I don’t think the 14th Amendment will suddenly get ignored, or end up repealed. People will likely leave in place the functions they are accustomed to: enforcement of civil rights, etc. What does that mean for gun rights? Gun rights being vigorously enforced by the Courts, Congress and Executive branch as part of our understanding of civil rights is not somethingÂ we’re accustomed to, because it’s largely not happened. The blue states will fight federal action to protect gun rights tooth and nail. If it doesn’t start happening soon, at some point that’s going to become a negotiating point between the Bluexit folks and the Redexit folks, and we’re probably not getting national gun rights policy after that. States like California and New York will remain awful. So in my 30,000 view of where the overall trends are going, we have a window, and that window is going to start closing probably within a decade.

Dudeaster

So far The Experts seem to have done about as good a job predicting the snowfall accumulation from this storm as they did the election. I didn’t go into the office today because I expected when I woke up, it would be snowpocalypse. Of course, there’s still more storm coming, but it’s looking like a dud here so far.

Not that I’m going to complain. I wasn’t look forward to shoveling 2 feet of the wet, heavy stuff off my driveway this afternoon. In other news, I absolutely hate The Weather Channel’s policy of naming winter storms. I hate it enough I’ve been actively boycotting them for their sin against meteorology.

California Legal

Can’t stop the signal:

I the Golden State, the automatic fire would be illegal, as would being able to detach a >10 rd magazine without disassembling the action. But the speed load would be legal, even with a bigger magazine if it were permanently attached.