American Defense Enterprises

Following up on the McDonald vs. Chicago case.  There is a good Op-Ed in the Washington Post arguing for using the Privileges and Immunities clause of the 14th amendment to incorporate the 2A.

If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.

First, protecting the individual’s right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights — those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it “codified a pre-existing right.”

Third, “privileges or immunities” are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans’ enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified “privileges or immunities” clause wielded by liberal justices would breed many new “positive rights” — to welfare, health care, etc. But conservatives know that “substantive due process” already has such a pernicious potential. And they believe that if — a huge caveat — it remained tethered to the intent of its 19th-century authors, the “privileges or immunities” clause would be useful protection against the statism of the states.

The LA Times has an article on the McDonald vs. Chicago SCOTUS hearing.  Like the Heller case two years ago there appears to be a consensus that the SCOTUS is going to rule in favor of the 2A right and incorporation by at least a 5-4 vote.  The question really lies in how the SCOTUS says it applies to the states or if it will leave that up to future cases.  The transcripts of today’s hearing suggest that the justices court will rule in favor and are just determining how much of the 2A will apply to the states and/or to what of level scrutiny any laws restricting the right will be held.

We still have to wait for a decision and that is 4 months away.  When it is delivered the most likely scenario is a favorable ruling that will leave restrictive gun laws open to challenge.  So hold off on writing your shopping list for that brand new AR-15 with all the tacticool accessories.  We still have a long road ahead that will hopefully involve challenges to  California’s handgun roster, AW ban, 50 BMG ban …

The transcripts of the McDonald vs. Chicago case which was argued this morning are up on the SCOTUS site.  Based on initial reports the Justices were not very receptive to the Privileges and Immunities argument by Alan Gura and seemed more receptive to the Due Process arguement by the NRA.  Initial analysis also indicates that the Justices may be resistant to opening a huge can of worms by accepting the Privileges and Immunities argument.  A victory for 2A rights and incorporation appears likely regardless of the argument the SCOTUS accepts, but will likely include language that allows states to restrict 2A rights on some level.

An interesting case, or lack thereof, occurred yesterday when the L.A. district attorneys office decided that there was not enough evidence to prosecute a SWAT officer.  The officer in question, Walter S. Jordan, was fired nearly three years ago for weapons violations and workers compensations fraud.  A search warrant was executed at his residence after his firing and …

“two suspect weapons were found, the senior law enforcement sources said, but explained state laws governing police officers’ possession of the particular types of guns were murky.

L.A. County prosecutors decided to drop the matter after researching the outcomes of similar cases involving police.”

The Association for Los Angeles Deputy Sheriffs is apparently not please with this outcome.

The laws for LEO possession of firearms are different from everyone else, but when everyone else fails to comply with the laws they get prosecuted.  It is shameful enough that the law sets different standards for different classes of citizens, but to also have different standards of enforcement?

Eric Leonard of KFI is currently following the story on his blog.

Seattle’s gun ban on City property was defeated today in Superior Court.  The judge ruled that the ban was illegal because of state law preemption in regulating firearms.

“According to the judgment, the city must stop enforcing the gun ban by Feb. 17.  They also have 30 days to take down the “No Guns” signs posted at parks and community centers around town.”

While the Mayor commented that they “worked long and hard to make sure the new law passed legal muster” he apparently did not read the preemption law.  Good thing the taxpayers of Seattle paid for that failure.

Story

Story here (kcbs).

Government waste at work!  Didn’t this just get passed as a STATE law (ammoland.com)?

And people think we would be better off if our legislature session was not all year long.. I mean, it’s not like they have free time — laws like this are so important, they deserved to be passed twice!

Civil Forfeiture  is the ~legal mechanism by which a government agency can take away your possessions without due process if there is a suspicion that they were used in a crime.  Drugs found in your car?  Police take your car.  Lots of money found that they suspect is illegally obtained, police seize your money.

Here is a great story recently on the ACLU website talking about a recent case and Georgia’s abusive civil forfeiture laws..

Short summary:

• It is just pure cash to the polic — it is one of the reasons  why the war on drugs is fought so fiercely
• Story involves person that just sold a used car, they get stopped for some unspecified reason, cops take the money under suspicion that it was ill-gotten.
• Police ADMIT the money was taken unjustly, but, require the person to file an action to get it back — most people cannot afford the legal fees for such an action, and, frequently it would cost more in legal fees than the possession was worth.
• This is rampant abuse.

Police should NEVER have a monetary incentive to enforce the law.  No fees from tickets, no civil forfeiture, etc.  There is just too much room for evil…

In an interesting move the Australian Classification Board has ruled that adult films can’t show women with small (A-sized) breasts.  The board, which is responsible for making classification decisions about adult films, computer games and publications, made the decision because they felt depiction of small breasted women in adult films encouraged pedophilia despite the fact that this is a completely normal breast size for women.

I am torn between government forcing adult films to have women with big breasts and the overreaching hand of big government.  If you are a breast man, you must see this as the best use of government power in the history of man, but being a leg man myself I see it as extremely shortsighted and ineffectual with no basis in fact.  I guess Keira Knightley won’t be doing any topless scenes in Australian movies anytime soon.

Story

Awesome! In Alan Gura’s response to the City of Chicago brief to the Supreme court he coherently tells the court that the City of Chicago is full of idiots who have no idea what they are talking about and are just making stuff up.

SUMMARY OF ARGUMENT
1. Respondents offer no coherent alternative
interpretation of the Privileges or Immunities Clause,
nor do they defend the reasoning of The Slaughter-
House Cases, 83 U.S. (16 Wall.) 36 (1873). Relying
on illogical assumptions, selective quotation of the
Fourteenth Amendment’s opponents and discredited
scholarship, Respondents aver only that the Clause
is either indeterminate or redundant of other provisions.
It is neither. And included within the Clause’s
protection is the right to keep and bear arms as
understood in 1868 America.

…

The fundamental flaw underlying Respondents’
approach is their erroneous conception of rights as
something granted by the Constitution when judges
deem it suits public policy. See, e.g., Respondents Br.
11; Mayors Br. 2, 30. The Second Amendment, like
the First, grants nothing. These secure pre-existing
rights against the federal government. Heller, 128
S. Ct. at 2812. In 1868, the Nation decided to secure
them against the States as well.

With the imminent release of 27,000 prisoners from California prisons occurring this year to ease the strain on the gluttonous California budget a Supervisor from Riverside has made a motion to allow personal defense to be sufficient “good cause”  for issuance of a CCW permit in Riverside County.

I applaud this action and wish it did not require unfortunate circumstances to occur.

Read the motion on the jump … PDF of the motion