Wednesday, April 18, 2018

Why DC v Heller (and McDonald v Chicago) is wrong

OK, I would shut up about this if my only complaint was related to the ability to regulate firearms. I have pointed out that these decisions do not act as a block to regulating firearms. In fact, they are highly regulation friendly. That is something I have talked about ad nauseum in the past.

Since that has been previously addressed, I will deal with the actual reasons these decisions were bad law.

First, they are historically inaccurate. I am not really going to cover this here since that would be a whole post in and of itself. The bottom line of that one is that the Amendment relates to the distrust for a standing army and bloated military establishment.  More than enough evidence for that in Anglo-American political history which is something that would have shown up if Scalia and Alito had bothered to have done their research.

Second, it removes the Second Amendment from the Constitutional Context and makes it a non-sequitur.  Not enough attention is paid to the preamble of the US Constitution here. That is important since it gives a hint what the intent of the founders happened to be when they drafted the Constitution.

The founders make it clear that the Constitution is supposed to address matters of the common defence. No where in the constitution is the concept of self-defence or personal defence addressed. It is a well known legal principle that if a text is silent on something one cannot infer that it is addressed by the law.

Furthermore, Article I, Section 8, Clause 16 gives Congress, and Congress alone, the power to:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
It was the power to arm the militia that concerned the founders given the distrust of standing armies. Again, there is Constitutional history here in that the Federal Government had a professional army, while the states had their militias.  It was a fear that the militias would be frustrated by Congress not funding them.

Instead, the militias died from lack of interest. But I've covered that elsewhere as well.

Since the Second Amendment relates to Federal power under Article I, Section 8, Clause 16, it cannot apply to the States. That makes the McDonald decision a legal absurdity.

Third, The Heller decision acted as if it was a case of first impression, which it was not. That means the Heller and McDonald decisions were a violation of stare decisis.

While, Marbury v Madison did not relate to the Second Amendment, it did address Constitutional language and said that no clause in the Constitution was without meaning.  Of course, given Marbury's significance, perhaps we can ignore these examples of poor judicial decisions (Heller and McDonald).

Which gets to the two 19th Century Second Amendment decisions: US v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886).

Cruikshank is short, but not really helpful because of that:
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
It shows that the 19th Century lawyers were more aware of the relationship of the Second Amendment to Article I, Section 8, Clause 16. Which takes us to Presser. That is a decision I've mentioned before. It is one which is probably the best for deciphering US v. Miller, 307 U.S. 174 (1939). Presser addresses he "unorganised militia" argument, and it made clear that the Second Amendment related to only the organised militias, which is now the National Guard (see Perpich v. DOD, 496 U.S. 334 [1990]).

Miller is problematic in that its style runs counter to how most people read judicial decisions. Its holding was most likely this paragraph:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.[1]
However it is unclear without the words "we hold" that this would be the holding, but it would logically be the holding. Secondly, the decision goes through the reasoning it came to this conclusion. The Miller decision then goes on to discuss Congress power to arm the militia. it then states that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.[2]
That sentence directly contradicts the Heller and McDonald cases. That is because it makes clear that both clauses are necessary for interpretation of the Amendment. Even more importantly, it makes it clear that the Amendment only applies to the organised (active) militia.

Finally, since these decision would amend the constitution by neglecting an important part the text and change the meaning of the amendment. That would make the decisions ultra vires, or outside the power of the court. Unfortunately, the US Constitution does not provide for a cure for one of the branches acting outside their powers or failing to act.

So, that leaves us with bad law on the books. Fortunately, one doesn't have a problem with regulating firearms. In fact, I would suggest ignoring the two risible decisions and going toward strict regulation of firearms. After all, the two unconstitutional decisions only apply to a ban on handguns in the home.  That means firearms regulation is wide open otherwise. And both Heller and McDonald made it clear that regulations were acceptable.

Which is why there hasn't been too much complaint about these decisions from the "anti-gunners".

[1] Aymette said: " To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive."

[2] See Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972). Douglas was a member of the US Supreme Court when Miller was decided and glosses that case in the dissent.

See also:

Saturday, April 14, 2018

Handguns v. Assault Rifles

This is a biggie if we are going to propose arming teachers with handguns to combat mass shooters: especially if the teacher has a handgun and the shooter has a rifle.

Let's get some bullshit out of the conversation here since the term assault rifle was a creation of the gun manufacturers. There's more than enough documentation for this with things like this copy of Guns & Ammo. Toss in that the StG-44 is the accepted grandadddy of these guns. StG-44 means Sturmgewehr 44, or Assault Rifle 44.

But, I don't need to go too far to see the pro-gun side shoot themselves in the foot, literally, in this argument. Since they will try to show these weapons are "hunting" rifles, or "modern sporting weapons". Take this comment from Gun Control Myth: The AR-15 is Not Actually a Hunting Rifle:

The AR-15 platform is known for its accuracy, especially over longer distances. For some types of hunting, this characteristic is particularly useful for successful hunts. Each bullet type has varying effective ranges. The .223 is effective from 400-600 meters. An AR-15 chambered in .308 has an effective range to about 800 meters; .338 Lapua's effective range is about 1500 meters; and .50 BMG has the range of about one mile..
While the author is trying to show the round is effective at long ranges, making it a good gun for hunting. He is actually shooting down the argument for arming teachers. Now, this is where gun crazies get a little outrageous and try and argue that a bullet can kill at a range up to two miles.

But effective range to me means can you accurately hit a target, which takes the range way down. This comment from a gun forum is pretty typical for what effective range is like:
Fifty yards sounds about right. Unless they have good training, most people can't shoot a 4" barrel accurately enough to target a dump truck beyond about 50 yards.
Yards and metres are about 3 inches in similarity, with metres being about 39 inches. Giving the 50 yard accuracy as being the max for a handgun, that would mean the person armed with the assault rifle would have the advantage by more than 350 metres.

Let's toss in the training needed so that people don't get killed in the cross-fire: especially if the teacher is firing off wildly inaccurate rounds while the shooter is laying down effective fire at a high rate of accuracy.

Again, this is another issue where accurate information would be needed, but the information is solidly "anti-gun" from what little is out there. The fact that the Columbine Shooters were engaged by a Jefferson County Sheriff's deputy seems to be lost in the debate.  Toss in the times that armed people, whether civilian or professional, failed to stop, let alone ameliorate the situation is next to non-existent.

it's pretty easy to see the fallacy of someone armed with a handgun stopping someone with a rifle by just looking at the difference in effective range between those two weapons. The problem is that this argument is being pushed by people who should know better, but think "anti-gunners" don't know anything about firearms.

Some of us know quite a bit about guns, which is why we believe they should be regulated.

Anyway, this is the final argument to the people who want to call these things "hunting rifles" or "modern sporting rifles":
"Nothing like a good clean kill."

Wednesday, April 11, 2018

Crisis Actors and gun violence

Not sure why this one needs to be debunked, but it does.

Crisis Actors are people who are somehow hired to "fake" shooting incidents for those who are even more removed from reality than the people who push this theory.

Like any good lie, there is a bit of truth here. The first thing to understand is that the “crisis actor” conspiracy theory has a slender tie to reality. Crisis actors do exist, though there is nothing underhanded about them: they are simply performers hired to play disaster victims in emergency drills or wounded combatants in military exercises. They provide a degree of realism for people practising for real emergencies further down the line.

This term has been hijacked where the gun plague is concerned to somehow say these incidents "didn't happen".  Despite there being obvious victims and proof of the shootings having happened. That is what makes this bullshit so hard to fight.

I used to agree with Michael Moore that the crime scene photos would stop this shit from being mentioned. I even had an online argument with Dawn Lafferty Hochsprung's daughter about this. I used to believe that facts could be used to counter bullshit, yet this crisis actor shit still keeps coming up.

Now, I have to agree with the daughter: no amount of sanity can fight this insanity.

We can provide documentation, but that is all "faked" by an all powerful "deep state".  Hell, we could exhume the graves and show these people the bodies, yet the deniers would say that was somehow "faked".

There are a lot of problems with denying mass shootings and gun violence: one of which is that it re-traumatises the victims and their families.

The other one is the biggie: if the whole point of these false flags is to bring about gun confiscation, then why the fuck hasn't it happened?

The US has had mass shootings at least since Howard Unruh went crazy and killed 13 people in Camden, NJ. Probably even before that happened. There was the 1966 University of Texas mass shooting where you can still see the bullet holes. While there was a trend to "strengthen" gun laws in the 60s-70s, that has been weakened from the 80s on.

Instead of confiscating guns, the US is awash with guns in the hands of who knows since there is no registry. Short of the authorities going after the rabid people who post on the Internet (which happens to be a USDoD creation). I would even bet that a "deep state" capable of creating realistic "mass shootings" can probably even read your minds.

Problem number two with this theory is why don't people like Alex Jones meet fatal "accidents" perpetrated by a "deep state" which has these capabilities?  Or are these people just useful idiots?

Anyway, the signs are pretty obvious that the "crisis actor" thing is bullshit as is the likelihood of any "mass confiscation" of guns. To be honest, a mass confiscation would cost far more than an Aussie style gun buyback ever would.

Toss in an all powerful, deep state capable of doing such a convincing job in producing these "mass shootings" could probably also take your guns without anyone knowing about it.  For all we know, the mass confiscations are occurring right now and the "truth" is being silenced. So beware of the shadows in your bedroom at night: they are probably agents of the New World Order.

See also:

Tuesday, April 3, 2018

Does the United States Have a Lower Death Rate From Mass Shootings Than European Countries?

Wow, what a stupid question.

But ask a stupid question and get a stupid answer: especially from right wing media and Fox News.
The source of all this is John Lott.

Again, Seriously? I can't believe that the right still trots this dude out after what they did to Michael Bellesiles. I guess John Lott is OK since his bullshit is what backs up the "pro-gun" arguments, but you might want to read this before citing  Lott.

Can you say Mary Rosh?

As per usual, Mary's, Er, John Lott's statistical method leaves a lot to be desired, but the pro-gun side has never been one to let facts get in the way of their arguments. And like pretty much ever one of the pro-gun arguments, this doesn't stand up to scrutiny.

After all, the last mass shooting in Norway was in 2011.  I was SOL when I tried to find a mass shooting in Belgium, and Belgium is pretty gun crazy. I did: there was one in 2011 where three (3) people were killed in Liege. That shooting doesn't count as a mass shooting under some of the US definitions for them (some require 4 dead to be a mass shooting). So, talk about being desperate to make the US situation look somewhat acceptable.

The last one in the US? Oh, About a minute or so ago.

Really now. Please don't try to say other countries have the US problem of mass shootings: that one just does not stand up.

Seriously!  The US has a problem with mass shootings, but like any addicted person refuses to face the facts until it's one of their family members who is a victim of gun violence.

And sometimes not even then.

So, the gun nuts work on the popular ignorance of other cultures, but the US is the only country not at war that has regular mass shootings (any one where there are 3 more more victims).

So, try not to be silly and get some REAL facts into this debate. Remember the pro-gun side banned gun research because it tended to be "anti-gun".

That's the only reason somebody like John Lott is called to be an "expert" since most people who know his reputation don't take him too seriously.

See also: