The Day the Earth Got Flatter

Here it is Monday, and the administration is keeping quiet about the climate-change fraud conundrum.  The only word I've heard comes from climate czar Carol Browner, who stated,

I'm sticking with the 2,500 scientists. These people have been studying this issue for a very long time and agree this problem is real (...) [people calling for action] are a very small group of people who continue to say this isn't a real problem, that we don't need to do anything.

At least she stops short of calling us "deniers" or "flat earthers."

Which is better than I can say for Al Gore.  His new book is called, Our Choice: A Plan to Solve the Climate Crisis, and it opens with this happy quote from Deuteronomy:  "I’m offering you the choice of life or death. You can choose either blessings or curses."

Yes, ladies and gentlemen, Mr. Gore thinks very highly of himself.  He's on a crusade to save us from our own worst instincts, much like his wife was in the 1980's.  He loves to see himself on television, and it's even better that he gets to lecture us from a position of moral authority.

Junk Science and Propaganda (Slight Return)

By now we've all heard about "climate gate."  The evidence so far is damning, to say the least.  I've certainly had my fill of the politicizing of pseudoscience, and I hope this new episode gets people questioning what they've blindly accepted for quite some time.

In any case, I imagine things will be a bit awkward at Copenhagen next week.

Reading through the current tale of scientific dishonesty and whitewashing, I can't help but be reminded of the Michael Bellesiles incident.

NAACP v. Civil Rights

All of the current amicus curiae briefs in McDonald v. Chicago are now posted on Alan Gura's site.


The NAACP has submitted theirs, and it's one that really bothers me.

They argue against revisiting the Privileges or Immunities clause at all, claiming,

The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2

They repeatedly claim that there's nothing wrong with selective incorporation, and that it should be kept, as it has not "suddenly proven unworkable."  Sure, no problem.  Selective incorporation can work, it just takes a hundred years or so sometimes.

Regarding Slaughterhouse and Cruikshank,

While it is undeniable that these cases are part of a dreadful chapter in the history of this nation, they present no bar to incorporation of constitutional rights as against the states under the Due Process Clause. p. 13

I can't help but get the feeling they're being more than just a bit glib about post-Reconstruction harassment and lynching, something that's confirmed a few pages later:

It would be ironic, to say the least, if this Court decides to reexamine the Privileges or Immunities Clause in this case—which involves firearms regulations in a city where, each year, many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre by white insurgents who escaped federal prosecution in Cruikshank. pp. 5-6

They argue that the Court, "should not decide Constitutional questions unnecessary to the resolution of this case," which is a bit disingenuous, since revisiting Priviliges or Immunities is necessary to the resolution at hand.

The NAACP has serious political capital invested in gun control as a political ideology, and I guess overturning bad civil rights precedent would threaten that agenda.

If this was 1968 or so, do you really think they'd would be so content to forestall a rehearing of the 14th Amendment?

McDonald v. Chicago: Brady Weighs In

So, they got theirs up just under the wire.  The Brady Campaign brief is pretty much exactly what I expected.

The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such.

They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation.

If anything, the Left needs to tread very carefully when praising infringements on 1st and 4th Amendment rights.

Their usual arrogance comes through on page 5:

Gun policy is best determined as it always has been in this country: in the political arena, without courts second-guessing reasoned legislative judgments.

I guess they didn't read this week's 7th Circuit opinion, because they rest part of their case on this:

Our society’s broad acceptance of firearms regulations is confirmed by the fact that while over forty states have constitutions with right-to-keep-and-bear-arms provisions, not one reviews such restrictions under heightened scrutiny. p. 22

Oh, and Arthur Kellerman is used as a source.  Twice.

This is really all they've got.  Can't wait for orals in January.

McDonald v. Chicago: Last Briefs

As the day winds down and my body starts rejecting the caffeine, we have two final briefs coming across the wires.

The first is filed by a group including 34 California District Attorneys, 8 Nevada District Attorneys, the California Rifle & Pistol Association Foundation, the Long Beach Police Officers Association, the San Francisco Veterans Police Officers Association, the Arizona Citizens Defense League, the Texas Concealed Handgun Association, the Virginia Citizens Defense League, and the Bloomfield Press.

They argue that incorporation through Due Process is a given, through any reading of the 14th Amendment.  Since the right to keep arms is fundamental, it must be incorporated automatically as a matter of course.  Their brief focuses on principles of individual defense, and they point out prior court precedent reserving citizens that right, including the 1895 decision in Beard v. United States.

The second brief comes from the Calguns Foundation.  Like Kopel's, it is a specialized brief designed to occupy a specific strategic niche.  In this case, they seek to refute the contentions of Raoul Berger and Frankfurter protegee Charles Fairman, the two authors best known for claiming that the 14th Amendment was never intended to enforce the Bill of Rights against state action.  In their words, "Charles Fairman’s and Raoul Berger’s work on Fourteenth Amendment incorporation of the Bill of Rights is deeply flawed, inaccurate, and should not be relied upon by this Court.”

As they point out, Fairman sank to personal attacks upon John Bingham's character in making what thin points he could.  It's high time someone dragged Berger and Fairman's biased and agenda-driven drivel into light where it can be seen for what it is.

The Calguns brief is deft and clear in its purpose, and it suceeds admirably.  I do recommend that everyone read their primary sources. The first is Akhil Amar's The Bill of Rights, which anyone with even a passing interest in the matter should own.

The second is On Misreading John Bingham, which is available here.

Third, but not last, is Michael Kent Curtis' No State Shall Abridge, which should be required reading at the college history level, if not sooner.

For context, I'd also recommend David Hardy's Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68, available here.

Curiously, I've heard nothing on behalf of Chicago.  The Brady Campaign was supposed to file a brief, but there's been no announcement.  In fact, there's only silence from the whole Annenberg/Joyce Foundation axis.

I checked Helmke's column on the Huffington Post, and there's nothing.

While I was there, I did a search that had some interesting results. There are at least four dozen articles about Heller, but only one about McDonald. I'm wondering if that means what I think it does.

McDonald v. Chicago: Dave Kopel's Brief

Dave Kopel has posted a brief in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.

This one isn't about the 14th Amendment at all.  Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and that bans such as the one in Chicago are not only ineffective but dangerous.

It occupies an important strategic position, since the counterargument will likely involve a plea for "interest balancing."  Kopel's research will serve as an effective bulwark against that.

The brief goes into great detail explaining why blood will not run in the streets if the Court incorporates the 2nd Amendment. Lots of charts, graphs and statistics prove the point, and it's worth noting that the information in this one will be useful to 2nd Amendment advocates long after resolution of the case at hand.

McDonald v. Chicago: Institute for Justice Brief

The Institute for Justice has submitted an amicus curiae brief [pdf] in support of petitioners.  Their thrust of their brief is that the 14th Amendment was meant to give teeth to the antislavery protections of the 13th, and that the marginalization of the 14th allowed "constructive servitude" to exist.  They ask that the Court look at the whole intent of the Privileges or Immunities clause, and not simply use it only as a mechanism for incorporation:

There is ample historical evidence that the purpose of the Fourteenth Amendment, and particularly the Privileges or Immunities Clause, was not merely to provide for the mechanistic “incorporation” of the first eight amendments (it would have been easy enough to say so), but instead to redress a whole host of laws, practices, customs, and mores whose common purpose was to destroy the ability of newly freed slaves to become self-sufficient members of society.  p. 12

They argue that incorporation is not only unneccesary but disingenuous, since the 14th Amendment (particularly Privileges or Immunities) was meant to protect a "pre-existing right."  Philosophically, they're absolutely correct.

McDonald v. Chicago: Congressional Brief

I'll post locations throughout the day as the amicus curiae briefs are posted.  It's a lot to absorb in a short time, so I'll just be posting links for now.

The Congressional brief is here.  I'd like to thank Saxby Chambliss and Johnny Isakson for signing onto it.  58 Senators (19 Democrats) and 251 Representatives signed on in total.  There are no great legal insights we haven't heard in any other briefs, but it does mention an interesting historical point:

At the outset of World War II, Congress authorized the President to seize certain property for the national defense under the Property Requisition Act. The Act explicitly excluded “the requisitioning or. . . registration of any firearms possessed by any individual for his personal protection or sport” and further denied that the Act could be used “to impair or infringe in any manner the right of any individual to keep and bear arms.”  p. 29

They also argue that state-level firearms restrictions impede the ability of Congress to call forth militias.

Most of the Senate signatures come from gun-friendly states, but several Representatives from New Jersey and New York have signed on as well.

Nordyke Brief Up

The appellants from Nordyke v. King have filed an amicus curiae brief [pdf] in support of McDonald v. Chicago.

My notes from the original verdict are here.  As expected, the decision at hand created a circuit split.  An order was filed to remand the verdict for a rehearing by the full 9th Circuit, who decided to shelve the matter pending the outcome of McDonald v. Chicago.

Their brief for McDonald not only argues that incorporation is necessary and prudent, but that the Supreme Court must establish a unilateral standard of review so as to give guidance to lower courts in deciding future litigation.

The original Nordyke verdict suggested strict scrutiny, as did the 7th Circuit in this week's Skoien decision.

The current brief is more specific:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib.  p. 25

U.S. v Skoien and Review Standards

Steven Skoien was indicted under § 922(g)(9) for possessing firearms after being convicted of midsdemeanor domestic violence.  He appealed, arguing that the statute under which he was convicted is unconstitutional under the terms of the Heller decision.

The 7th Circuit has agreed and is vacating his indictment [pdf] until such a time that the government can prove that its interests are in balance with the means involved.  The law in question places a lifetime prohibition on gun ownership for those convicted of domestic violence, even if only a misdemeanor.

The importance? Up until now, it has not been established what standard of review Heller implied for the constitutionality of gun laws. According to the 7th Circuit:

Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

The government's justification rested on Heller's reference to "presumptively lawful regulatory measures," to which the 7th Circuit replied, "that's not enough."  If this becomes precedent, then the burden of proof will be much more stringent upon the government when it comes to defending gun-control regulations.

Weird Science: Planetary #27

Almost three years since the last issue, Warren Ellis has delivered the final book of Planetary.  It's an odd and problematic epilogue, but a welcome one nonetheless.

The premise seemed simple enough on the surface.  All that stuff in the superhero comics?  It really happened.  Four scientists did venture into space and return with supernatural powers.  A dying planet did send its last son to earth.  Sherlock Holmes was real, and there's an island off the coast of Japan where giant monsters live.

Of course, none of it happened the way we've been led to believe.  Spoilers ahead.

McDonald v Chicago: SAF Brief Submitted

The Petitioners have published their final brief [pdf] in the case of McDonald v Chicago.  The brief is sharp, focused and well-argued, as I've come to expect of Mr. Gura.  It's also unrelentingly meticulous in predicting and dismantling potential counter-arguments.

The first part explains the history and intent of the 14th Amendment.  To remove any doubt that "privileges" meant anything but "rights" to the drafters, he quotes Andrew Jackson Rogers, himself no friend to the idea of incorporation:

What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege.  [p. 25]

From there, he moves on to the meat of the case: overturning Slaughterhouse.  Gura understands the gravity of what he's asking the Court to do, and he takes a multi-pronged strategy in his arguments that's very persuasive.

McDonald v. Chicago: Briefs Pending

The deadline for amicus curiae briefs in the McDonald case is November 23. Chicago filed for an extension, and their brief is now due on December 30.

Two Senators and two Representatives have drafted a brief in support of the plaintiffs, and we'd like to see it receive as many signatures from other legislators as possible. Please contact your congressmen and ask them to sign this brief.

The 1990's Are Now Officially Over

Geocities has closed down.  Frankly, this came as a bit of a surprise to me, as I didn't know it was still around.

The whole service represented everything that was wrong with not only web authoring, but the whole idea that anyone could (or should) do it.  It gave people a venue to publish whatever they wanted, no matter how inane, vapid, or just irrelevant.  The result was that people who could barely write a sentence in their native language were now all "webmasters."

Webmasters!  Talk about empowerment.

For those too young...

Today marks the 20th anniversary of the fall of the Berlin Wall.

In a way, I wish significant parts of it had been preserved.  We need to remember the Zimmerstraße death zone.  We need to remember people like Peter Fechter, who was left to bleed to death in a ditch after being shot during an escape attempt.  We can never forget the simple truth that socialism can only be enacted on a large scale through oppression and force upon the governed.

The Wall may have been the largest public symbol of that fact. Its fall was a huge victory, both in idea and act, but schoolchildren need to know that some systems are so cruel, so harsh and so repressive that the risk of death is acceptable if it means escaping.

Pushing the Envelope vs. Pushing Your Luck

Pictured below are the sad remains of a S&W M&P 340 revolver.  The 340 is a J-Frame chambered in .357 Magnum.  Its frame is an aluminum alloy infused with a small percentage of Scandium, and it weighs in at 12 ounces.

The owner fired six rounds of .38 Special through it without issue. The first shot of .357 blew up the gun. The operator was unharmed, as all of the unpleasantness happened forward of the muzzle.

An Embarrassment of Cartridges

I've been clearing this up for a lot of people this week.  If you're new to shooting, it's easy to look at the huge variety of ammunition out there and get incredibly confused.  There is nothing wrong with asking, and it's far preferable to blowing up a gun or getting hurt.

Here are a few of the misconceptions I most frequently have to address:

• .38 S&W is not the same as .38 Special


• .38 Super is not the same as .38 Special


• .357SIG is not the same as .357 Magnum


• .32 S&W is not the same as .32 ACP (also known as .32 Auto)


• 7.65 Browning is the same thing as .32 Auto


• 6.35mm is the same thing as .25 ACP


• .45 Colt is not the same as .45 ACP


• .45 GAP is not the same as .45 ACP


• 7.62x39 is not the same as 7.62x54R


• 7.62x51 is pretty much the same thing as .308


• 7mm Mauser is not the same as 7mm Remington Magnum is not the same as 7mm Ultra Mag is not the same as 7mm-08 is not the same as 7.5mm Swiss


• 9mm Largo is not the same as 9mm Luger


• 9mm Kurtz is not the same as 9mm Luger


• 9mm Luger is the same as 9mm Parabellum


• .38 Short Colt is...wait, where did you find .38 Short Colt?!?