Sunday, September 22, 2019

Great court dissent

Judge Alex Kozinski   Silveira v. Lockyer, 328 F. 3d 567 (2003)

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or ... the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 586-587; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon — a sawed-off shotgun — was reasonably susceptible to militia use. See Miller, 307 U.S. at 178, 59 S.Ct. 816. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history — Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The sheer ponderousness of the panel's opinion — the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text — refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it — and is just as likely to succeed.

Saturday, September 21, 2019

Rip off saga continues

When last we spoke about my in laws and their auto purchasing woes, they were in possession of a car with a VIN that doesn't match the car they were driving. The dealer overnighted paperwork to them with the correct VIN, but this set of papers misspelled my FIL's name. So now they are trying to get that fixed. 

To make things worse, my BIL is in town, and he is from NY. He is a typical loud mouthed, obnoxious NY resident. His advice to my inlaws is to go to the dealer and loudly curse and scream until they agree to give them new paperwork and a $2000 refund for their  refuse to pay for the car. I pointed out that, should they do that, the dealer will likely have them trespassed. 

Then the BIL went on and on about how the contract isn't valid because the name is spelled wrong, and how if FIL refuses to sign a new contract, the dealer has to return their trade and their money. So here is the big plan:

The BIL said that after being trespassed, they should refuse to pay for the car. Since the VIN doesn't match, the dealer can't do anything. I said that they would just repo the car. The New Yorkers in the room tried telling me that they can't do that, because the BIL sells used cars in NY, and you can't repo a car without a court order.. I told them that this isn't NY- the way to repo a car here is that they simply take the car wherever they can, and the law only requires that they notify the police within 24 hours. 

Sigh.

All I got were arguments about how they would sue and would call the local press, arbitration be damned. "We have a registration and insurance on the car, they can't repo shit." Sigh. This is why people in the south don't like to deal with know it all New Yorkers. I love my wife, and sometimes I wonder how she turned out so level headed and reasonable. 

Don't scare the Soccermoms

The open carriers are scaring the soccermoms and this is hurting the rest of our guns rights. Antigun mothers usually don't care enough about guns to make it an election issue, which is a good thing, because women are generally not in favor of gun ownership, but they are usually ambivalent to it. However, when women see this as a threat to themselves or their kids, they start to care. Seeing people open carrying guns right after a bunch of high profile mass shootings is doing just that. As an example: here is a recent exchange online that was about the MSNBC poll on guns:

Soccermom
See, I'm not actually anti-2a, even though it seems a lot of people assume so (not you). Do I like guns? No. Do I realize that there are way too many guns to ever make plausible restrictions or controls on them? Yup. Do I have to explain my my tendency to feel anxious or threatened when I see someone I don't know with a gun? Yeah, I'm pretty sure I have that right too. It's pretty much a moot point though, there will never be sensible gun laws in this country because we're well beyond putting a cap on anything. I realize that. But where are my rights and protections? Everyone can wave around a gun in public, but I shouldn't feel a certain way about it because it's an amendment? 🤣🤣🤣 Yeah. Once again, not directed at you. I don't want my kids around people open carrying either. And no, I'm not a liberal who's like, "Confiscate all the guns!" From who? The people that are way better armed than the liberals?

Divemedic:
Flow So you aren't opposed to people being armed, you are opposed to people doing things that make you nervous? Doesn't that make it your problem, not theirs? After all, your position isn't about what the open carrier is doing or not doing, but is about the way you feel.
Soccermom
 No, I'm opposed to seeing guns. It's not just that they make me anxious; I don't want my children around them either. And it is about what the open carrier is doing. Why does an open carry person's rights supersede my own?

Divemedic

So if a person said that "I'm opposed to seeing women's legs and collar bones. It's not just that they make me anxious; I don't want my children seeing that either. And it is about what the woman is doing. Why does an woman's rights supersede my own?" Does that mean that you would be willing to cover up? If not, why does your opinion change when it is YOUR ox being gored?
Soccermom

 On that same token, I don't really want to see people walking around with open knives or bottles of acid or anything like that. People are basically stupid and I don't trust people I don't know to not do stupid things like accidentally shooting someone.
"Doesn't it make it your problem, not theirs?" Well, yeah, that's why I said that it was a moot point. I literally just wanted to say why I don't exactly relish the idea of seeing a bunch of idiots in Target waving their guns around.
And you're basically saying that I don't have a right to be opposed to something. I'm not changing laws, not marching on Washington DC, I will literally never do anything about gun control laws. Ever. But I am absolutely fucking protected by the Constitution to say that I feel uncomfortable around guns.
Attorneyguy

Why does open carry bother you more than concealed? The number of guns isn't affected by whether they are inside or outside the clothing.
Soccermom
Why do I have to have a reason? Obviously, if I don't see them, I'm not aware of them. It doesn't make me feel better to be near someone armed or safer, quite the opposite actually.
Divemedic

 I am not saying that you don't have a right. After all, people have a right to not vaccinate their children. If you get enough people who share an opinion, their votes can effect policy, no matter how misguided that policy may be. That is how we got slavery, prohibition, and segregation.
Therefore, it behooves us to show people when their position is based upon emotion instead of logic. That means that people will hopefully vote from a logical position instead of an emotional one.
The Constitution protects arms the same as your speech.
Soccermom#2
 I get what Soccermom is saying. I don't want to see people brandishing weapons in public. I prefer the illusion of Disneyland to the street wars of Chicago.
However, to me, people with cars are a bigger threat and probably kill more people than guns. I also don't like to walk past large dogs barking crazy behind short fences.

Divemedic
I don't like tattoos. There are people who don't like sitting at the same lunch counter with African Americans. That doesn't mean that tattoos should be outlawed, nor does it mean that we should return to "whites only" lunch counters.
The way that one feels about other people and their actions doesn't supersede the rights of those other people.
Soccermom

 I truthfully give not one iota of fuck about the second amendment. It doesn't apply to me. I mean, cops get killed when someone wrestles their gun away from them and they're trained to not let that happen. So what if some idiot doesn't have their gun fully secured on their person and someone snatches it and opens up on a Walmart? 

Poll

MSNBC has a poll: "Do you think that people should be allowed to carry guns in public?"

As of the time I write this (September 21 at 11:10 am) the vote shows more than 93% (783k) saying "Yes! The Second Amendment guarantees it."

That flies in the face of this story.


Deal Alert

RK Guns has a stripped lower available for $49.99. They offer it with no transfer fee when you order online and have it sent to your local Rural King store. Since there are 115 locations nationwide, perhaps you can easily find one near you.

Add a $39 lower parts kit, a complete upper for $185, a stock and buffer kit for $24, and you can have an AR-15 for less than $300.

Thursday, September 19, 2019

Trump gun control proposal

Here is the gun laws that were supposedly being suggested by the Trump administration, but now the White House is denying that it is genuine.



Note that it says all advertised commercial sales would require a BGC. If you read the part that says "Many commercial sales are conducted outside of FFLs" It appears that this is an attempt to shut down private transfers at all gun shows (which are advertised, after all).
It seems that this would shut down all face to face sales on Gunbroker. Remember that the antigun team is all into incrementalism in the name of so called compromise.

Wednesday, September 18, 2019

most racist thing you will read today

Here is an entire article about how Kamala Harris supposedly ashamed a Second Amendment supporter on the Jimmy Fallon show. The quote I want to point you to is this one:

But for sheer joy, it’s tough to beat Andrew’s reaction, as he sits there looking like someone has just stolen the latest issue of Mayonnaise Aficionado out of his mailbox.

If I typed an article about blacks and said something about a racial stereotype, like a reference to watermelon or passed a comment about Mexicans and beans, I would rightly be roasted for making racist comments. So why does Mediaite get a free pass to be racist assholes?

As for Kamala Harris, please show me the part of the Constitution that grants the President power to ban anything by executive order. We elect a President, not a King. Go fuck yourself. Just for that, I will go out and buy a couple more stripped lowers and a case or two of ammo.

Rip off update

I blogged recently about my in-laws being sold a vehicle while the dealer deliberately hid the fact that it was a demo. In an attempt to resolve the issue, my in-laws returned to the dealer the following morning and were offered a different, comparable vehicle at a slight (less than $500) reduction in price.

They took the deal and drove the vehicle home. After arriving home, they discovered that the paperwork has the wrong VIN on it. I pointed out that they need to get this fixed ASAP, because if they get pulled over, the VIN not matching the registration could cause them issues, especially if the dealer notices that the vehicle they have is still showing as being in inventory but is no longer on the lot and decides to report it stolen. At the very least, they are in possession of an unregistered and uninsured vehicle. My mother in law told me that this was "far-fetched" and I was being ridiculous. She said that they had the paperwork to show they recently bought the car, and just because the VIN was incorrect made it a simple paperwork issue and this was not a big deal.

At this point, I am backing out of helping them.

Tuesday, September 17, 2019

Amazon looks better

With all of the stores telling me that they don't want my business if I am armed, while at the same time doing nothing REAL to prevent shootings or crime, I appreciate Amazon more and more. I can buy almost anything without having to be near the proverbial watering hole.

Yet another reason why online retailers like Amazon are putting traditional retail out of business.


Sunday, September 15, 2019

Editorial oversight, part 227

Layers of the stuff. Remember this when the press is attacking a Republican for some sort of verbal gaffe: