Friday, April 30, 2021

An opinion from 1850 on concealed weapons

 "The act of the 25th of March, 1813, makes it a misdemeanor to be "found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view." This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) "in full open view," which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations." 

 State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599 (1850).

I guess the "Gun Rights Crowd" are going to have to push for open carry.

Wednesday, April 28, 2021

More thoughts on New York State Rifle & Pistol Association Inc. v. Corlett

I'm reading Carlton Larson's Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit from the Hastings Law Review and he's pretty much saying what I am saying. that is the US Supreme Court has pretty much said in the dicta to Robertson v. Baldwin, 165 U.S. 275 (1897) that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;"

The Court described exceptions to the Second Amendment in Heller as "presumptively lawful regulatory measures," and it is hard to imagine the Court invalidating them in a future case.' For all practical purposes, these issues have been decided-and decided in favour of constitutionality. And one of those exceptions was concealed carry with the statement "For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

As I pointed out earlier, one of those courts was the US Supreme Court. Even though that statement was made in the dicta to Robertson v Baldwin. If using the dicta in Dred Scott v Sanford is OK to establish this right, then using the dicta in another Supreme Court case should be more than acceptable to limit that right.

The problem is that DC v Heller was in no way a case of first impression with multiple statement such as this from Justice William O. Douglas, who was on the court when Miller was decided. He did a gloss of this Second Amendment jurisprudence in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

But that was pretty much dicta even though it was from someone who was on the court when US v Miller was decided. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, Cruikshank did point out that the Second Amendment was only a limitation on Congress' power under Article I, Section 8, Clause 16. But Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Presser pointed out that States had a definite interest in regulating the carrying of weapons:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine

While the issue in Presser would go to the argument about the Second Amendment right applying to people who were not part of the organised/enrolled militia (what is now called the national guard). It does address the carrying of weapons outside of the militia, or common defence, purposes.

The US Supreme Court acted outside its powers in promulgating the Heller and McDonald decisions. First off, there is no constitutional provision for judicial review: that comes from Marbury v Madison. Unfortunately, there is also no recourse if the court starts creating law: especially when those decisions become political. 

Likewise, there is no constitutional limit as to how many justices may be on the court. The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

Justices Scalia and Alito may have thought that ignoring precedent and the constitution were acceptable, I believe Justice Coney Barrett may as well, but they may see their power diminished if the result is to politicise the court.

Tuesday, April 27, 2021

New York State Rifle & Pistol Association Inc. v. Corlett

Talk about shooting yourself in the foot. The petition for cert in this case says:

Perhaps the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.

This gets right to the heart of the matter as to why concealed weapons had a long standing status of being prohibited. Having those confrontations turn deadly.

What seems to be seriously neglected in all this debate is not only does the US Constitution NOT mention self-defence, the use of deadly force was seriously proscribed at the time the US Constitution was drafted.

I'm disappointed at the State of New York's petition against the granting of cert because it fails to mention that the Heller decision clearly stated that prohibitions on concealed weapons were acceptable under the Second Amendment. Not only that but the US Supreme Court already stated in the dicta to Robertson v. Baldwin, 165 U.S. 275 (1897) that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;"

If using the dicta in Dred Scott v Sanford is OK to establish this right, then using the dicta in another Supreme Court case should be more than acceptable to limit that right.

The problem here is that New York's law was adopted in 1913 and is one of the "presumptively lawful regulatory measures" that fall under the scope of acceptable limitations on their reinterpretation of the Second Amendment. I would add that Heller and McDonald were not cases of first impression despite the courts pretence that they were.

The problem with this case is that there is (1) a long standing law which is being challenged and (2) there is a substantial public purpose for that law.

But then again, my blognomen does come from the fact that my dog had been in court far more than Harriet Miers ever had. I don't have too much respect for what finds itself on the court.

Guns, CCTV, and the Surveillance State

ADT had an ad almost 30 years ago that compared a handgun to a burglar alarm. It pointed out that the alarm would call the cops while the gun was sitting in a drawer or safe. In other words, the alarm could protect your home when you weren't there.

I've had enough experiences over that period between my private life and my work in the criminal justice system to come to the conclusion that CCTV is much better at stopping, or at least deterring, crime than any firearm. Not to mention much safer: unless you are installing it yourself and you have no idea what you are doing.

Having a firearm is probably more of an advertisement to get robbed than having an alarm or CCTV since you have a valuable commodity (or commodities) to the criminal fraternity.

As the gun crowd likes to point out: criminals don't respect the law. And how else are they going to get their guns other than breaking the law?

CCTV images of 2011 UK Rioters

On the other hand, CCTV does indeed stop crime. Likewise, the footage can be stored remotely and shared. Mine is hi-def quality and stored for a month. Any clip I make is stored until I delete it. The best part is that I don't need to be at home for the camera to work since the product is stored on the internet. I can be anywhere there is internet access and flip through the footage. I can share the clip with the law enforcement using a link.

I would also add that my clips use facial recognition. Which is actually sophisticated enough that it can catch someone trying to obscure their face.

And, yes, I have shared my video with LE since my camera is registered with the local police.

While some people may believe that CCTV isn't that much of a deterrent, especially if used by the government, that isn't the case when individuals share the information between themselves and/or law enforcement. Also, the issue about "government intrusion" can be limited if the CCTV info comes from individuals instead of the government or business.

Anyway, CCTV is definitely a crime solver and deterrent where I actually live with quite a few high profile cases being solved using CCTV information. The reason I'm posting this is that my footage has helped apprehend a criminal even though I wasn't home at the time.

The real issue is whether the prosecution want to use CCTV information. Compare the UK's use of CCTV after the 2011 and that of in the US to catch the "peaceful protesters". With the exception of the person who set fire to the police car in Philly, most of the protesters have gotten away with it due to prosecutorial inaction.

The issue is that the surveillance economy is already here. We may as well make it work for the benefit of society.

See also:

Monday, April 26, 2021

Comedy is much better at making points than argument...

 I'm having a big problem right now with the accusations of racism and white privilege. For example, CNN legal analyst Areva Martin slammed David Webb for his white privilege...

The problem is that people can't use the term racist without really considering what it means. Worse, saying that only white people (especially white males) are racist is about as false as it gets.

And racist too!

"Blacks are never racists..."

Definition of "woke person" : a "racist person" with an Inferiority Complex. Definition of "racist person" : a "woke person" with a Superiority Complex

There is a test where you switch a comment such as "all white people are racists". Better yet "all whippl are racists" with some other group as see how racist that sounds.

After all, how much difference is it between calling white people "whippl" and blacks, or any other minority, something offensive?

Maybe we can move on to some substance, but it won't happen on Facebook. Let's hope it will happen in reality.

Oh, boy! SCOTUS granted cert to New York State Rifle & Pistol Association v. Corlett!

 And the gun regulation crowd is in freak out mode. I should add that Gene Volokh is being pessimistic. Part of me wonders if he regrets not letting on someone with my background to the Volokh Circle Jerk, but I wouldn't join if he learned Ukrainian.  Anyway...

A recap of my comment on the Giffords Facebook page with some additions:

Heller and McDonald were both very amicable to regulation with this statment being made in Heller:
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884)."
I'm going to add that one of the courts which held that laws prohibiting concealed carry of weapons happened to be the US Supreme Court in Robertson v. Baldwin, 165 U.S. 275 (1897):
The right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; 165 U. S. 281-2
It doesn't take too much research to come up with precedent showing that the practise of carrying concealed weapons (as opposed to open carry) was not accepted. The court cases which address this issue clearly make the distinction. Likewise, we had the statement of Then-NRA President and lawyer Karl T. Frederick from the NFA adoption hearings:
MR. FREDERICK: ... "I have never believed in the general practice of carrying weapons. I seldom carry one. ... I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses"
Some very good and serious researchers can come up with more than enough material denouncing concealed-carry practice as, among other things, "dangerous," "cowardly," "detestable and heathenish," and "provocative of violence and murder." There is a lot of disgust for the practise of carrying concealed weapons and expanding the right to "bear" is even crazier than what came out of Heller-McDonald.
People carrying concealed weapons were considered cowards because most frontier settlers believed it honourable to give foes "fair warning." Openly carried weapons were the accepted norm, with a holstered pistol being the recommended accoutrement for those bearing arms. Moreover, concealed weapons were perceived to perpetuate crime, "because persons becoming suddenly angered and having such a weapon in their pocket, would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person."
Anyone familiar with me knows I  am super at research, but I was being lazy here. Any clown who claims to be a scholar who want to push the idea of carrying concealed weapons is a fraud. I came up with the above material in about 5 minutes and would bury you in authority that the practise of concealed carry was highly disapproved of if I had the Library of Congress and some good researchers.

Any decision by the SCOTUS which find the practise of concealed carry was somehow "acceptable" or contemplated by the founders will run afoul of the Heller decision which said:
"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" And that list was in no way exhaustive."
Given that NY's law is over 100 years old now, they would be overturning well settled law. Anyway I wouldn't be too worried if the court actually follows its own precedent. Remember Heller's actual holding:
"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights{1}, the District must permit him to register his handgun{2} and must issue him a license to carry it in the home [3}."
I pointed out three measures which this holding finds Constitutionally permissible:
1 Background check
2 registration
3 Licensing
"Constitutional Carry" is a fantasy. So you're out of luck even if you want to carry an H&K SP5 pistol in your car at the ready if stopped by "peaceful protesters".

You're going to have to get a permit to do that.


OK, the utopians not only want  to rid society of guns, they also want to get rid of the police. Crime will be solved by social programs which ensure equality by providing housing, health care, social services, and lord knows what. Probably drugs will be legal and freely available so that the population is properly drugged up and docile.

Crime suddenly disappears making the police something which a utopian society no longer needs.

Not really. Even utopian ideologies such as anarchy believe in order, but the order comes from people knowing the rules and respecting them. Utopian societies don't exist, but they would be much more "authoritarian" in reality if they did. You don't need the cops because you know the rules and follow them. Otherwise, you do some public self-criticism about your failure to be a good citizen.

But that isn't really my point here since the distopian reality is already here: the surveillance state.

You don't need cops on the street, or even a highly visible force, since the people doing the policing are sitting in some room. They probably don't need to be too attentive either since facial recognition software can keep tracks on people.

The real solution to the police problem is the surveillance state.

And it's already here. To the point I've been tempted to write a post called "Why are you here? Really?" about how social media, which includes Google make their money on surveillance. Trump could have had a field day if he went into how big tech, especially social media, make their money.

And people gladly hand them the info.

But you don't need to have rooms full of monitors to have a surveillance state. All one needs to do is set up a clearing house for the information which is collected by individuals. That doorbell cam can help solve crimes.

I know mine has and I haven't been "home" most of the time.

The surveillance state's neighbourhood watch never sleeps. Even better you don't need to worry about it being brutal. People walk by the eyes of the state blissfully ignorant that they are under observation until the moment they act up.

People might get upset about facial recognition, but how do they feel about it after it helps apprehend the person engaging in sexual assaults in their neighbourhood?

Defunding the police will result in something much more sinister. Hell, it's already here!

A disclaimer: I believe in some of those social programs, but am under no illusion they will be the sole answer to crime.

Sunday, April 25, 2021

Defund the Police is Utopian, Misinformed, and Misguided

I witnessed the police beating someone resisting arrest. It was about 4-6 police officers on one small, skinny person.
Was it a bunch of white racist cops in the US?

Nope, it was someone who refused to leave a bar on Gandy Street in Exeter, England in 1991. The person who was being beaten was white, as were the police. The issue was that the person was resisting arrest.

This is why I say "Defund the Police" is misinformed. It is based on pretty much upon ignorance since the police will use force on someone who is resisting arrest no matter where one happens to be in the world.

The Atlantic sort of gets the point as to a couple of issues which help explain why the US is "more violent" than Europe:
The morbid exceptionalism of American police violence cannot be explained by the amount of money the U.S. spends on police, or by the number of cops it employs. The U.S. spends less on police than the European Union does, as a share of GDP. Italy has more officers per capita than any state in the U.S., according to a comparison of FBI and Eurostat databases. Greece has more officers per person than Newark, New Jersey; Baltimore; and Chicago.

But none of those places shares our epidemic of police violence. American police kill about 1,000 people every year. Adjusted for population, that body count is five times higher than that in Sweden, 30 times higher than that in Germany, and 100 times higher than that in the United Kingdom.

Many differences between the U.S. and the European Union can partly explain these gaps, including our history of systemic racism and our porous social safety net. But without the mention of guns, no explanation for America’s record of police violence is complete.

OK, the "Gun Violence Prevention" types should be upset about the guns on the street, but they are getting way ahead of where they should be in this process: especially if they are serious about cutting back on how many people patrol the streets. Getting the guns off the streets should be priority number one for the people who are going to float this crazy concept. Not to mention they should be really careful about how they frame the issue in regard to people who carry guns.

Guns are not the problem in Europe and most of the rest of the world that they are in the US.

Acquiring guns illegally in the US is not much harder. About 57% of this year’s deadly force victims to date were allegedly armed with actual, toy or replica guns. American police are primed to expect guns. The specter of gun violence may make them prone to misidentifying or magnifying threats like cellphones and screwdrivers. It may make American policing more dangerous and combat-oriented. It also fosters police cultures that emphasize bravery and aggression.
But the biggest issue is the legal framework regarding the use of deadly force in self-defence in the US. Let's go beyond the enhanced castle doctrine/stand your ground laws to get to the amount of force police are allowed to use in the US and EU. 

Graham v. Connor, 490 U.S. 386 (1989), was a US Supreme Court case regarding the use of deadly force by the police. Graham can be boiled down to:

Any use of force by law enforcement officers needs to take into account "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

"The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."

Bottom line is that it is constitutionally permissible for police to use deadly force when they “reasonably” perceive imminent and grave harm. There are 38 State laws regulating deadly force which are almost always as permissive as Supreme Court precedent allows. Sometimes those laws are even more permissive than the federal law  in the latitude they give officers to use deadly force.

Contrast that to the European Union where the European Convention on Human Rights allows police to use only the deadly force that is “absolutely necessary.” In contrast, police in the United States are permitted if they have a “reasonable belief” that their lives are in danger. Under these differing principles, a police shooting might be lawful in the United States and not according to European standards.

Add in that European Union countries set their own regulations within the commission’s framework. Similar to the US some countries have stricter rules than others in regard to the application of that framework. Again, we see a difference between the US and EU attitudes toward the use of deadly force by the police. In Finland, for example, a cop is expected if possible to seek a superior’s approval before using deadly force. In Spain, if possible the police officer must first fire a warning shot and shoot at a non-vital part of the body before they can shoot to kill. Those examples were not meant to advocate attempting to shoot a "non-vital part of the body".

Likewise, racism alone can’t explain why non-Latino white Americans are 26 times

more likely to die by police gunfire than Germans. And racism alone doesn’t explain why states like Montana, West Virginia and Wyoming, where both perpetrators and victims of deadly force are almost always white, exhibit relatively high rates of police lethality. I would add that the Guardian feature on people killed by the police showed that (1) more whites were killed, but (2) the population most effected by police violence was native americans (10.13 to blacks at 6.66)!

One other thing which is common in European, and other non-US forces, is that they are not locally controlled. One of the reforms in Belgian Policing after 2001 was that the forces were reformed into to different national branches. Most European Police departments are accountable to a national body.

The bottom line is that simply saying "defund the police" will be a failure until there are drastic changes in US society, which I don't see happening. Those are the enactment of effective gun regulations and a change in the standard for the application of deadly force in self-defence.

Two thing that the "gun violence prevention" crowd and "Black Lives Matter" would be well advised to spend their time addressing. Otherwise, they are acting against their stated interests.

See also: