Category Archives: Uncategorized

4th Circuit ruled that Assault Weapons & “Large Capacity Magazines” can be banned… what nonsense.

Freed up by the Supreme Court’s ongoing reluctance to engage in depth with the Second Amendment, the Fourth Circuit has taken it upon itself to rewrite Heller en banc. In a 10–4 decision, issued yesterday afternoon, the court upheld Maryland’s ban on both “assault weapons” and “high capacity magazines.” By so doing, it deprived the people of Maryland, the Carolinas, and the Virginias of the core protections to which the Constitution entitles them.

As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.

What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?

Ted Cruz shows how ridiculous this test is here:

As usual, the slippery slope exists & they really do want to take your guns.

No one wants to take your guns: “Why It’s Time to Repeal the Second Amendment”

It’s gotten to the point where I’m going to have to create a new category: No One Wants To Take Your Guns.

Because this shit is getting out of hand.

Supposed Constitutional Law Professor David S. Cohen penned this nonsensical rant for Rolling Stone the other day, “Why It’s Time to Repeal the Second Amendment

In the face of yet another mass shooting, now is the time to acknowledge a profound but obvious truth – the Second Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

Yeah, because we should just eliminate constitutional rights because something bad happened.  My rights end where your feelings begin. Mind you, this only applies to the 2nd amendment.  Hate speech? Well no, we can’t eliminate the 1st amendment!  A criminal getting away with murder because of the right to remain silent? Not a good reason there.

Rather, it’s only the burdensome 2nd amendment that is regularly targeted for elimination.  And remember, no one wants to take your guns.

Breaking: 9th Circuit en banc on Peruta – 2nd Amendment does not apply to concealed carry

Just released:

The en banc court affirmed the district courts’ judgments and held that there is no Second Amendment right for members of the general public to carry concealed firearms in public.

Appellants, who live in San Diego and Yolo Counties, sought to carry concealed firearms in public for self-defense, but alleged they were denied licenses to do so because they did not satisfy the good cause requirements in their counties. Under California law, an applicant for a license must show, among other things, “good cause” to carry a concealed firearm. California law authorizes county sheriffs to establish and publish policies defining good cause. Appellants contend that San Diego and Yolo Counties’ published policies defining good cause violate their Second Amendment right to keep and bear arms.

The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including  a requirement of “good cause,” however defined — is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.

As a reminder, California bans open carry entirely. By allowing arbitrary “good cause” requirements for concealed carry that can be denied under any pretext, the 2nd amendment is effectively non-existent outside of one’s home.

The Supreme Court will have to weigh in with a solid decision stating the 2nd Amendment applies to carry outside the home in order to overrule these sorts of decisions – and this will require another district coming up with a ruling opposite what the 9th circuit has returned.

Who could have predicted that requiring a Doctor’s note would remove a Constitutional right?

The Honolulu Police Department is requiring a doctor’s note that many doctors are not willing to write.

A former service member tells us he’s followed all of HPD’s rules, but he’s stuck in a policy deadlock because his insurer won’t comply.

If you think this wasn’t by design, you are naive.

Dave Kopel on “The Costs and Consequences of Gun Control”

Dave Kopel again speaks wisdom with this guest post in WaPo’s The Volokh Conspiracy column:

By far the single most effective step we could take to reduce violent crime would be to greatly increase spending to help the severely mentally ill. The biggest crime reduction would be fewer crimes against the mentally ill, since they are more vulnerable than the general population, and are victimized at a much higher rate. The mass murderers in Tucson and Aurora could have been committed for observation and treatment under existing state laws, with due process protections, but people who knew about the danger failed to take the appropriate steps. More broadly, there are many persons with severe mental illness who voluntarily seek temporary hospitalization, but who are turned away due to insufficient treatment capacity. Greater spending to help the mentally ill today will more than pay for itself in the long run, by reducing criminal justice and incarceration costs. (The mental health issue is addressed in greater detail in my forthcoming article in Howard Law Journal.)

The post also links to his recent policy statement published on CATO which breaks down why all the recent gun control proposals are not “common sense” at all but ideas that are incredibly short sighted in practice.

Poll driven politics

A few days ago, Hillary Clinton made repeated calls for Austalian style gun control, saying it was worth looking at.  As many pundits noted, you can’t have Australian gun control without firearms confiscation. 

Now her people are walking back those statements:
Looks like Australian style gun control wasn’t polling as well as she thought. 

Fallacious Gun Control Arguments: Remove guns, [Problem] Solved!

No matter what the perceived problem, you can bet that the stock answer of the antigun activist will always be “get rid of the guns!”

It doesn’t matter what the topic du jour is, be it accidental firearms deaths of children, a spree killer, suicides, or more, their pat answer will always be that the only appropriate response is to remove firearms, and not explore any of the other multivariate reasons that a tragic event took place.

I mentioned South Park’s Underpants Gnomes in a previous entry (here’s the relevant video clip about them), but I’ll expand on it here.  The Underpants Gnome’s Business plan is:

  • Step 1: Collect Underpants
  • Step 2: ???
  • Step 3: Profit!

Underpants Gnomes have an end goal and they have a starting action plan, but they have no idea how to get from Point A to Point B, and no amount of questioning the soundness of their ideas will dissuade them.  Gun Control proponents are much the same way:

  • Step 1: Pass law or restriction to address “gun related” problem!
  • Step 2: ????
  • Step 3: Problem solved!

Let’s take the two biggest issues typically talked about: Suicide & Crime.

Suicide – “If there’s less guns, there will be less suicides!”

It’s said that 90% of the people who commit suicide have some sort of diagnosable mental health disorder.

Research has consistently shown a strong link between suicide and depression, with 90% of the people who die by suicide having an existing mental illness or substance abuse problem at the time of their death.  The following pages provide general information about depression, other mental illnesses, and how they are connected. (source)

In 2011 there were 39,518 suicides in the US.  Of them, just over half (19,990) were committed by firearms; the next two greatest causes of death were suffocation (9,913) & poisoning (6,564).  Why are firearms such a popular choice? Because they are effective; if there was an easier & more sure method you can bet people would choose that instead.

The common antigun argument is that if there were no guns (or less guns) then those 20,000 people killing themselves yearly wouldn’t do so. There have been studies that have shown that reduction of firearms presence reduces firearms suicides (yeah, no shit sherlock) but what’s particularly interesting is that research has produced contradictory information on whether or not reduction of firearms has resulted in reduction of overall suicide rates.  In particular, Australian researchers couldn’t make a definitive proclamation that their gun ban worked:

Some researchers have found a significant change in the rate of firearm suicides after the legislative changes. For example, Ozanne-Smith et al. (2004)[33] in the journal Injury Prevention found a reduction in firearm suicides in Victoria, however this study did not consider non-firearm suicide rates. Others have argued that alternative methods of suicide have been substituted. De Leo, Dwyer, Firman & Neulinger,[34] studied suicide methods in men from 1979 to 1998 and found a rise in hanging suicides that started slightly before the fall in gun suicides. As hanging suicides rose at about the same rate as gun suicides fell, it is possible that there was some substitution of suicide methods. It has been noted that drawing strong conclusions about possible impacts of gun laws on suicides is challenging, because a number of suicide prevention programs were implemented from the mid-1990s onwards, and non-firearm suicides also began falling. (source: Wikipedia)

In particular, this study states:

When the firearm suicide rate for Australian males declined the hanging rate increased simultaneously, with no statistical difference in the rate of change of the two methods. A similar pattern of simultaneous divergence in hanging and firearm suicide rates of a 15- to 24-year-old subgroup occurred at a not dissimilar rate over a longer time period.

It’s not just Australia though, lack of availability of, or increased restrictions on firearms hasn’t been shown to result in a magical suicide free Utopia. I addressed this in an earlier entry:

Just look at this handy list of suicide rates by country on Wikipedia.  The United States has on average 12.5 suicides per 100,000 people.  Surely if there were less guns, there would be less suicides, right?

Wrong.  Look at Japan: 21.4 per 100,000.  Even worse, look at South Korea: 28.5 per 100,000.  Neither country has ready access to firearms.   Belgium has much stricter gun control than the US, but firearms are available there.  Surely their suicide rate must be lower than the US, right? Nope: 17.0 per 100k

Removing (or controlling) guns isn’t the miracle cure, sorry!

In summary, firearms are a risk factor for suicide but they are not a proximate cause as it is an intentional act & substitution of method exists.

Crime – “If there are less guns, there will be less crime!”

Boy oh boy, where to even start with that.  To start with, we have to ignore the fact that the firearm has largely enabled civilization to move from the feudal era to modern times.  Here’s a great TED talk about firearms that is a 17 minute watch but well worth your attention.

Crime is widely attributed to have various causes, including

  • Biological (genetic predisposition to aggressiveness, neurological issues, and other biological factors)
  • Developmental (family & community factors, peer groups)
  • Psychological (personality, social factors, cognition, abuse)
  • Sociological (cultural & social elements such as class, ethnicity, peer influence, social mobility & success, criminal culture)
  • Geographic & physical environment (urban vs rural, community construction & development, other environmental factors)
  • Economic (cost/benefit of situations both in monetary & social status as well as material benefits)

This is no great mystery.  Crime in the US can be attributed to a number of factors, be it drug abuse, parental neglect, lack of social welfare or economic stability, poverty, greed, or cultural breakdown & toxicity.

“Ok, so lots of things cause crime,” you gripe.  “Surely removing guns would reduce crime right?”

Nope, as Stolzenberg writes in her paper “Gun Availability and Violent Crime: New Evidence from the National Incident-Based Reporting System” –

After estimating several models, with a broad array of outcome measures and independent variables, we found virtually no evidence that legitimate gun availability influenced the violent crime rate or crimes committed with a gun.

“Aha!” the antigun arguer exclaims, seizing on the operative word “legitimate” – “If we reduce the number of ‘legitimate’ guns, there will be less ‘illegitimate’ or illegal guns!”

Similarly, we found little support for the position that as the number of legitimate guns in the general population increases, violent crime also rises. Rather, our results show the primaey of illegal gun availability in predicting the violent crime rate. Illegal gun availability is the only variable that shows consistent, nontrivial effects across all models estimated. These strong effects persist even after controlling for a variety of potentially rival causal factors.

The paper goes on to say that the best way to reduce illegitimate firearms availability is to focus on burglary reduction as that is a primary method of firearms reaching the black market:

The findings generated from our analyses are not surprising when one considers that survey research has consistently shown that both adult and juvenile offenders frequently acquire their guns from thefts (Sheley & Wright 1993; Wright & Rossi 1986).

I will address the topic of securing firearms in a future entry.

The key point is that if there are illegal guns available, no matter where they originate from, they will be used.  Having firearms available legitimately has no bearing on whether they will be used for most crime.  Where else have we seen this phenomenon?

The War on Drugs & prior to that Prohibition.  Let’s face it, “Money is the root of all evil” right?

Gorden Gecko’s quote from Wall Street sums it up:

Greed, for lack of a better word, is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures, the essence of the evolutionary spirit. Greed, in all of its forms; greed for life, for money, for love, knowledge, has marked the upward surge of mankind and greed, you mark my words, will not only save Teldar Paper, but that other malfunctioning corporation called the U.S.A.

Wherever there is a profit to be made, people will do what it takes to realize it.  Some will confine themselves to legal methods, others will seize opportunities to capitalize on the illicit.  History has romanticized the outlaw, from Robin Hood to Billy the Kid & Jesse James.  Al Capone & Nucky Thompson both lived large on Boardwalk Empire; Al Pacino’s Tony Montoya may have been fictional but has influenced generations of criminals.

Banning alcohol during Prohibition didn’t stop it from coming in; it just made it worth killing people over and the profits made from illicit sales entrenched organized crime for decades.  The War on Drugs has enabled narcotrafficking on a global scale to the tune of trillions each year.   Opium from Afghanistan funds the Taliban, cocaine bankrolls FARC in Columbia, and the unending bloodshed in Mexico is most certainly paid for by methamphetime, marijuana, cocaine, and more.

Even if you ban firearms from civilian ownership altogether, that won’t stop criminals.  They’ll just smuggle them in, or they will take them from whomever has them, even if they have to kill cops to get them:

In the Venezuelan capital, not even the state’s security forces are safe: during the first 29 days of 2015, criminals murdered 13 of the city’s uniformed officers. Circumstances varied, but in the majority of cases, the perpetrators killed police to steal their firearms.

Thinking that just banning guns will work is so foolish that it isn’t even worth discussing.