Transcript Of Senate Judiciary Committee Proceedings: February 5, 2013

The Sergeant at Arms having called the Committee to order, the first speaker was Chairperson Feinstein.

Senator Feinstein: We continue our hearing on Senate Bill 13-367, the Firearms Safety Act, with today's witness Mr. Wayne Lapierre of the National Rifle Association. Mr. Lapierre, I understand you're here today on behalf of your organization, to testify on ideas for preventing future tragedies such as those which occurred at Newtown and Aurora.

Mr. Lapierre: That is correct, Madame Chair.

Senator Feinstein: Let the witness be sworn.

The witness was duly sworn.

Mr. Lapierre: Madame Chair, may it please the Committee, I would like to begin with a statement. On behalf of the National Rifle Association and its four million members, and the thirteen million active sportsmen and hunters we represent, let me say that we all deplore the breakdown in our nation's morals, and mental health care system, that led to these tragedies…

Mr. Thompson: Objection! Out of order, irrelevant, immaterial, impertinent, and scandalous! Madame Chair, on behalf those alleged to suffer from mental health disorders, I move that the witness's last remark be struck.

Senator Feinstein: Mr. Lapierre, who is this man?

Mr. Thompson: I can answer that! May it please the Committee, and even if it may not, I am Jack Thompson. You probably know that Jack Thompson is one of the most outspoken opponents of sexuality and violence in video games. Along with other notables such as Hillary Clinton and Tipper Gore, Jack Thompson has sent literally hundreds of letters, made dozens of media appearances in such respected venues as Hannity and Colmes and The O'Reilly Factor, and even filed several law suits, all attempting to restrict harmful video games from reaching the hands of youth. In addition, it is my pleasure to serve as General Counsel and Media Relations Advisor for the National Rifle Association, and the witness's counsel before this tribunal.

Mr. Lapierre: That's correct. Mr. Thompson's appointment became effective on December 20, Madame Chair. As I was saying, it has long been apparent to our members that this great nation suffers from a sickness of the soul, and that millions of Americans who suffer from mental disease go untreated…

Mr. Thompson: Objection! Sustained! I will caution this witness not to confuse this honorable committee with LIBEL SLANDERS or he shall receive NOTICE! Our Process Servers will be UNLEASHED! Let the record reflect that!

Mr. Lapierre: … and from the deadly scourge of violent and pornographic videogames, which afflict and trouble the youth who commit these rampages.

Mr. Thompson: Now we're talkin'!

Senator Franken: Madame Chairwoman, may I suggest to the witness that his counsel's antics are highly disruptive of this Committee's work, and ask that…

Mr. Thompson: I don't have to take that from a drug pusher like you, Senator!

Senator Feinstein: <gavels> Order in the hearing room!

Mr. Thompson: You're out of order! You're out of order! The whole Committee is out of order! They're out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he'd like to do it again! He told me so! It's just a show! It's a show! It's "Let's Make A Deal"! "Let's Make A Deal"! Hey Frank, you wanna make A Deal? I got an insane Senator who likes to beat the shit out of women! Whaddya wanna give me Frank, three weeks probation? You, son of a bitch, you! You're supposed to stand for something! You're supposed to protect people! But instead you rape and murder them! You killed McCullough! You killed him! Hold it! Hold it! I just completed my opening statement!

Senator Feinstein: <gavels> One more outburst from counsel and the Committee will adjourn for contempt proceedings!

Mr. Thompson: Ah hah! But the strawberries that's where I had them. They LAUGHED AT ME and made jokes, but I proved beyond the shadow of a doubt and with GEOMETRIC LOGIC that a duplicate key to the wardroom icebox DID exist.

Senator Feinstein:  The Committee will adjourn. Mister Sergeant!

Mr. Thompson:  And I'd have produced that key if the Florida Supreme Court hadn't put me out of action. I know now they were only trying to protect Electronic Arts and Activision!

 Whereupon the Committee adjourned.

Res Ipsa Loquitur

Proving his point that judges are too ignorant to make reasoned decisions about gun control, Justice Stephen Breyer demonstrates his complete ignorance about guns:

Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic?

Any textualist would tell Justice Breyer to read a basic firearms manual. Any gun owner would tell Justice Breyer that a vast number of the guns owned in America are semiautomatic. A semiautomatic gun is one which dispenses precisely one round with each press of the trigger and loads the next round by mechanical pressure. Semiautomatic firearms are owned by millions of law-abiding hunters and homeowners, and even by policemen. God only knows what J-Dog would tell him.

Perhaps Justice Breyer, and his equally ignorant clerks, meant to raise the specter of fully automatic firearms, which dispense rounds in multiple bursts or until exhausted of ammunition, as with machine guns, squad automatic weapons, and the like. There is no reason to believe that the five Justices who held for the petitioners in McDonald v. Chicago, one of whom I have it on good authority hunts and knows the difference, will ever overturn the federal ban on civilian ownership of machine guns. At least not until they're made obsolete by blasters and phased plasma rifles, in forty watt range (which I'm assured are ideal for home defense).

Perhaps our most serious constitutional defect isn't the Second Amendment, but Article III, which grants astonishing power for life to highly educated men and women, even when those people prove, again and again, that their educations don't mean a damned thing.

But I doubt Justice Breyer would go that far.

I Learned A New Word Today

On one of the gun nut websites they referred to anyone with the temerity to suggest that someone needed to buy more than one gun a month as a "hoplophobe."  It's defined as variously "fear of firearms" or "fear of armed citizens." I think they should really push the first definition. I may have a healthy dose of the first, but I have an irrational case of the latter.

As I have become more involved in this movement, I can honestly say that the people scare me far more than the guns.

I do wonder if you could call a fear of firearms a true phobia, or just good common sense though.

Friendly Felon Furnished with Firearms

What hath Heller wrought?

Last week the North Carolina Supreme Court handed down a decision that, to my mind, would have been unlikely to say the least before District of Columbia v. Heller, the 2008 United States Supreme Court holding the Second Amendment's protection of the right "to keep and bear arms" to be an individual right.  The North Carolina Court found that, as applied to a non-violent felon, North Carolina Constitution Article I, Section 30, which like the Second Amendment provides:

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

prevents the State from divesting the felon of firearms.

The case is styled Britt v. State (no citation yet).  It's an important decision, with a few caveats: First, it does not address the United States Constitution, but rather an identically worded right within the North Carolina Constitution.  It has no precedential value anywhere except in North Carolina, does not bar enforcement of federal laws, and may, in years to come, be treated as an outlier rather than persuasive law by federal and other state courts.

Second, the facts are important and a little unusual.  Barney Britt was convicted of methaqualone (aka quaalude) possession, a non-violent felony, in the 1970s, and by all accounts has lived an exemplary life since serving his sentence.  He was allowed to maintain firearms under state law, on his own land (where he hunted), until state law was amended in 2004 to prevent him from doing so.  His challenge to the law was also exemplary.  He questioned his sheriff as to whether the law applied to him, got an opinion that it did, and voluntarily surrendered his guns.  Then he hired a lawyer to contest the constitutionality of the law as it applied to him only.

And he was successful.  The Court, in a 5-2 decision, limited its holding to Britt's specific facts, finding that the exercise of state police power to bar firearms to a non-violent felon, who had demonstrated good character for thirty years, was an unreasonable restriction of the state right to keep and bear arms.  The Court did not address the statute's constitutionality as to violent felons, repeat offenders, or non-violent felons who have been out of prison only a short time.

The dissent predicts, and I agree, that this will lead to a flood of litigation in the state, as others like Britt, who as the dissent concedes made only one "huge mistake early in his life," seek to have their rights restored.  And yet, when rights are unconstitutionally abrogated, that is precisely the proper remedy.  The dissent would prefer to uphold the state's bright-line rule, both in deference to state police power and presumably to avoid choking the courts with similar suits.

Although North Carolina's case law in the area was (and is) better developed than federal law before Heller, I still can't imagine this result would have been reached in 2007.  Congratulations are in order to Mr. Britt and to his lawyer, Dan Hardway, who picked the right client, with the right case, and brought it at the right time.

States Right This Time, But Not Next Time.

On Wednesday, the Senate votes on an amendment to the Military Funding Bill that will force States to recognize concealed-carry permits from other States. This means that Illinois and Wisconsin (the only States that do not issue concealed-carry permits) would be forced to accept them from Texas (where you are issued one at birth.) It would sweep under the Federal rug, multiple instances of States regulating who can and cannot have these permits. Some States refuse them to felons, some States require at least a minimum of training and some States pretty much merely require that you are breathing. None of that would matter with this amendment.

Put aside the obvious concerns that various States have about expanding the concealed-carry exemptions and look only at the Constitutional argument. In an Olympic level gymnastics move, the State's right crowd is (for this issue only) arguing that the "Jackbooted thugs" know best. Of course, we cannot trust the judgement of the individual States. Surely mother government knows best. What is wrong with the picture when Wayne LaPierre and John Thune are so anxious for Federal action. It demonstrates the utter hypocrisy of most of their arguments.

Imagine the outrage if Dianne Feinstein proposed an amendment that suggested that this reciprocity be recognized for gay marriage, or abortion? Of course, when it comes to those issues, only the States can truly decide.

It feels weird to be on the State's rights side of the argument for once, but here's hoping the Senate does the right thing and strikes this amendment. Of course, thanks to the Blue Dog Democrats I would not be surprised to see it pass.

Because There Are No Ninjas In the Militia

Via How Appealing, I see that the Second Circuit ruled that New York's law banning possession of nunchuks (or, if you are a colossal nerd, "nunchaku") does not violate the Second or Fourteenth Amendments.

The court made short work of the appellant's argument that the law lacks a rational basis, probably thinking correctly that people seeking to carry nunchuks recreationally should be encouraged to return to the basement and level their Night Elf hunter some more instead. What's slightly more interesting is the court's treatment of the Second Amendment argument. Rather than indulge in the fascinating question of whether the term "arms" extends to weaponry other than firearms, the court simply held that the Second Amendment has not been incorporated — that is to say, it is a right that binds only the federal government, not the state. As the court correctly concedes, the Supreme Court in Heller declined to decide whether Second Amendment rights bind the states, as that question was not before it. Some commentators have suggested that Heller signals that SCOTUS will, in fact, find that the Second Amendment is incorporated through the Fourteenth. This case now squarely presents that question.

I'm not sure if any other cases are in line to present that issue to SCOTUS. It would be highly amusing if the question were presented by a guy with some nunchucks.

ACLU: Currently Annoyed, Still Wrong

The ACLU has long refused to acknowledge an individual right to bear arms, insisting on a narrow, collective-militia-rights interpretation of the Second Amendment. That's unprincipled. It's not unprincipled because the collective rights interpretation is self-evidently stupid or dishonest; that interpretation is a perfectly arguable, though wrong. The ACLU's position is unprincipled because it bills itself as a defender of individual rights and has consistently taken the most pro-individual-right position possible in interpreting the rest of the Bill of Rights. Their flat declaration that "in our view, neither the possession of guns nor the regulation of guns raises a civil liberties issue" is entirely inconsistent and unconvincing.

It's fairly clear that this is an example of political expedience and bias (as pro-gun advocacy is traditionally aligned with political forces that take more narrow views of other rights) and cultural squeamishness or snobbery. That's disappointing. But nobody's perfect, I suppose.

Anyway, the ACLU is now somewhat snippy about the United States Supreme Court recognizing a personal right in Heller that they had refused to recognize or defend. Perhaps the ACLU can't remember a time when SCOTUS has recognized an individual right that they have not. Maybe they should ask themselves why that is. Maybe if a few of their local branches jump ship they will finally be moved to do so.

What About Pointed Sticks?

Stung by a rash of criminal knifeplay in the streets, the British lion is finally roaring back.

Prime Minister Gordon Brown has argued that anyone over 16 caught with an illegal knife should be prosecuted, rather than escaping with a caution.

But [Conservative Party leader] Mr [David] Cameron says the presumption should go further – so anyone convicted of carrying a knife should be jailed.

If Britain would do the sensible thing, and issue concealed carry permits to law-abiding citizens, I suspect that knife-wielding hooligans would soon be put in their place.

But I find this story more interesting for its domestic implications. The behavior of British politicians on what we can now call "knife control" is indirect but powerful evidence that the NRA, pre-Heller, was right all along about the ultimate aim of gun control advocates in the United States.

Make no mistake, many knives are dangerous weapons and stabbing is a horrible crime.  But for the heirs of Churchill and Pitt to reduce themselves to argument over who would punish knife possession most harshly seems positively silly, and at the same time thoroughly medieval.

No One's Life, Liberty or Property is Safe while the Florida Legislature is in Session

The Florida Constitution has this to say about the rights of its citizens:

All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property…

Unless, according to the Florida legislature as of last Tuesday, by "possessing and protecting property," one means prohibiting others from bringing firearms onto that property.

no public or private entity may prohibit any customer, employee, or invitee from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in such area.

The law, Florida House Bill 503, also prohibits owners of commercial property from even asking of employees or customers whether those people are bringing guns onto the premises.

Mind you, I support your right to own a gun, and to keep arms in your home. I simply do not support your non-right to bring a gun onto my property, against my wishes.

Naturally, there are exceptions, and one of those exceptions is the State of Florida itself, which does have the right to prevent people from entering much of its property with firearms. But for others, this is a rather shocking abrogation of the rights of Florida merchants and employers to determine for themselves whether guns are to be allowed onto their property, and to control their property in general as they see fit. It goes far beyond now-traditional civil rights protections, which prevent merchants and employers from discriminating on the basis of race, gender, religion, and the like, as those are to an extent inherent characteristics, whereas the decision of whether to pack heat is always an individual choice.

The provision that guns must be kept locked in the car is a fig leaf of sanity, providing no real protection to anyone who feels that guns are unwanted on his or her private property. How long does it take to unlock a glove compartment or to pop a trunk?

Still, I suppose Floridians should be glad that the federal government is beyond this law, or nobody's mail would get delivered once Florida's postal workers learned of it. As are manufacturers of explosives, a loophole that Disney has exploited rather cleverly. But banks, and many other sensitive businesses where guns are traditionally thought a no-no, are not excepted.

H/t: Jag of the Popehat forum.

The Plural of Person is People

As in:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

The Supreme Court has ruled in favor of respondent Dick Anthony Heller in District of Columbia v. Heller, finding that the rights protected by the Second Amendment to the United States Constitution are individual rights. In other words, the Constitution protects your right to keep and bear arms, not that of some nebulous or non-existent militia, from federal encroachment.

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