Tuesday, April 29, 2008

Thoughts On the Second Amendment and the Bill of Rights

Note: This is only my reasoned opinion, as an average citizen. I am not an attorney. Do not take this as legal advice. If you do, you will probably be arrested, since the courts and the government do not seem to agree with me. You have been warned.

Something recently struck me about the Second Amendment. It actually contains the boldest and most powerful statement of protection of any of the ten amendments that are the Bill of Rights. The phrase "shall not be infringed" is clear, concise, and says that not even the slightest restriction or regulation is to be tolerated. Think of this: an infraction is "the act or an instance of infringing" and an infraction is the smallest violation of law possible. Driving 20 in a 15mph zone is defined as an infraction. Nobody counts an infraction as a crime. But the Second Amendment is the only part of the Bill of Rights that says a right "shall not be infringed."

Read all ten. You can find them here.

The First Amendment? It says "Congress shall make no law [...] abridging [...]" the rights listed. The founders did not say that the states could not do so. The First Amendment specifies congress, which, the way the Constitution was written and interpreted at the time, meant that it did not apply to the states.

The Third Amendment does not specify a right, but while it does limit a government action, it also limits that restriction. "[...] in time of war, [...] in a manner prescribed by law."

The Fourth Amendment limits it's right, using the words "unreasonable" and "probable cause." If the government has reason, or probable cause, they can search and seize and arrest with impunity.

The Fifth Amendment enumerates several restrictions on the government, but, except for the restrictions against double-jeopardy and self-incrimination, each of them has exceptions. Even self-incrimination is questionable - a comma instead of a semicolon places it grammatically within the effect of the "due process" exception. And nowhere does it specify these as "rights," though they are understood as such.

The Sixth Amendment says "the accused shall enjoy" the rights listed. Nowhere does it say that these rights shall not be regulated.

The Seventh Amendment simply extends the right of trial by jury to civil cases. The amendment itself restricts this right to matters over twenty dollars (a ridiculously small amount, by today's standards, but significant at the time).

The Eighth Amendment, while restricting the government, again never uses the word "right," and is written in subjective terms ("excessive," and "cruel and unusual") which are argued regularly in front of the Supreme Court.

The Ninth Amendment simply protects rights that are not specifically stated in the Constitution, and the Tenth Amendment says that anything not addressed in the Constitution is reserved to the states or the people.

Nowhere in the Bill of Rights is a right protected as fiercely, and as specifically, as in the operative clause of the Second Amendment. "The right of the people to keep and bear arms shall not be infringed." It specifies that this is a right, that it belongs to the people, and that it shall not be infringed. It allows no restriction, no regulation, and no debate. It does not limit this prohibition to the Federal government - it is a blanket statement. What does this mean?

It means that no gun control law passed by the federal government is constitutional.
Because it is a blanket statement, it means that the power to regulate or restrict guns is prohibited to the states, as well as to the federal government.
It means that no gun control law passed by a state government is constitutional.
It means that no government can tell you that you can't carry your gun concealed, or into a business that serves alcohol, or onto school property. Your rights apply everywhere.
It means that the government cannot restrict the type or number of guns that you can purchase.

It means that, while the government cannot restrict or regulate who can have guns, what kind of guns you can have, or where you can carry your guns, it can bring charges against you based on your actions.
If I fire my gun into the air, I can and should be charged with reckless endangerment. I have recklessly done something which could injure or kill someone. If I throw a knife in the air in a crowd, it could also injure or kill someone, and I can and should be charged with reckless endangerment. A bullet travels farther than I can see, so no crowd is needed to make it reckless and dangerous.
If I shoot and kill someone, and it was not done in defense of myself, my property, or someone else, that is murder. It is still murder if I kill them with a knife, or a bat, or my bare hands.
If I point my gun at someone to frighten them into giving me money, I have committed robbery, and should be punished accordingly. It is still robbery if I used a knife, or a bat.

No gun control law is constitutional. The wording of the Second Amendment is absolute and unyielding. Unfortunately, no court in this nation recognizes that fact today.

"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." U.S. Constitution, Amendment 2

Saturday, April 26, 2008

Shedding the Light on Concealed Handguns - Again

The same post at The War on Guns that prompted the rant below also reminded me of this. For those who don't remember, or aren't from here in the Blacksburg/Roanoke area, Christian Trejbal wrote a column on March 11, 2007 called Shedding Light On Concealed Handguns, in which, as part of "reflect[ing] on the importance of open government and public records" he used the process of obtaining a statewide list of concealed handgun permit holders to demonstrate how open government is beneficial. Then he published the entire list on the paper's website, complete with addresses!

Needless to say, a great public outcry followed. (The paper's blog comments are here.) One of the loudest outcries was that many of the people on the list had a permit because of an abusive ex-spouse or ex-significant other, who now had access to their most recent address. The outcry was such that the Roanoke Times removed the list the next day. They claim they did so because:
“When we posted the information, we had every reason to believe that the data the State Police had supplied would comply with the statutes. But people have notified us that the list includes names that should not have been released,” said Debbie Meade, president and publisher of The Roanoke Times. “Out of a sense of caution and concern for the public we have decided to take the database off of our website.”

Probably just to avoid lawsuits when some ex-spouse goes to his ex's home and attacks her because he got the address from their site.

It looks like the Medford Mail Tribune is getting ready to do the same thing, and they've won the court case to get the list. For the whole story, go to The War on Guns.

This Just Makes Me Mad

I stumbled on this old editorial (from the Medford Mail Tribune, 12 Sept 07) from the blog The War on Guns. There are so many things about this that make me mad, it's hard to figure out where to begin. A quick summary:
The teacher reportedly is afraid of her ex-husband, whom she has served with a restraining order. After district officials reminded the teacher of district policy and told her not to bring a gun to school, she contacted the Oregon Firearms Federation and a Portland attorney, who says he will ask a Jackson County judge to declare the district's policy illegal. He says state law specifically declares that only the Legislature has the power to regulate firearms.

The Legislature also both banned guns from schools, and exempted concealed carry permit holders from that ban.

Many of the usual anti-gunner "guns don't belong in schools" arguments follow. What really makes me mad though, is this:
The chances of an accidental shooting — or a gun making its way into the wrong hands, with tragic consequences — are far greater than the chances of an intruder bent on mayhem. And let's not forget — this isn't just about teachers. If the loophole remains, any person with a concealed handgun license could bring their gun to the next football game or parent-teacher conference. Is that a good thing?

He seems to ignore the fact that she's not afraid of just a random intruder. She's afraid of a specific person, namely her ex-husband. Although the article doesn't mention that he's made any specific threats against her, the fact that she's gotten a restraining order means it's very likely that he has.

He also ignores the fact that an "accidental" shooting, or the gun "making it's way into the wrong hands" can only happen if she takes the gun out. It's not going to "go off" in the holster. It's concealed. Even if, because of this idiot's article, someone knows she has it and wants to take it away, they won't know where she has it.

But what really, really pisses me off is this:
In the meantime, there is the question of the Medford teacher's situation and what risks it may pose to students, regardless of whether she is armed. If she is so afraid of her former husband that she feels the need to carry a gun at school, what threat might he pose to her students? Parents would be justified in asking that question, and school officials should be prepared to answer it.
He suddenly remembered that she's afraid of a specific person, and uses that to call for parents to complain as a way to try to get her fired for someone else's actions! There is no reason for this except sheer damned vindictiveness. She hasn't done anything herself except to dare to challenge the "holy writ" that "guns don't belong in schools."

I don't know how this story turned out, or how it stands today. But if this bastard succeded in getting her fired, every teacher in the country should be worried. If someone threatens you, whether you did anything or not, you may find your self out of a job!

Friday, April 18, 2008

Fresno Student Shot, Killed by Police Officer After Bat Attack

Full story here.

Here's what apparently happened:

A police officer shot and killed a 17-year-old high school student Wednesday after authorities said the teenager clubbed the officer with a baseball bat on the packed, urban campus.

The officer fired at the student shortly before noon, after the Roosevelt High School sophomore allegedly came from behind and struck the officer in the head with a crude wooden baseball bat, Fresno Police Chief Jerry Dyer said.

The officer fell down dazed, and reached for the gun in his hip holster, but the clip fell out.

As the student came at him a second time, the officer grabbed a secondary weapon — a semiautomatic handgun he carried as backup — from his ankle holster and fired one or two rounds, Dyer said. The student reportedly died within a few minutes.

As soon as I read the details, I knew there would be something like this:

Silvia Carrillo, whose daughter is a sophomore at Roosevelt High, said the shooting did not seem justified.

"My son and my brother went to school here too, and nothing like this ever happened. I think this wasn't enough for him to kill the kid," she said.

Let's get this straight: A baseball bat IS a deadly weapon. It can be used to kill you. He attacked a police officer with a deadly weapon. The officer was justified in responding with deadly force when his assailant moved to continue the attack.

The officer was injured, on the ground, with an assailant moving towards him with a deadly weapon. Any chance the officer might have had to hold the assailant off at gunpoint was lost when his primary weapon failed. By the time he was able to draw his backup weapon, the attacker was probably right on top of him, too close for a warning. Based on the facts available from the story, this sounds like a fully justified shooting.

Frankly, I'm surprised he had time to get the backup gun out without getting hit again. By necessity, an attacker with a baseball bat is only about 4 feet away when he hits his victim, maybe closer. Just at a guess, the attacker may have hesitated when the officer drew his primary weapon, and hesitated again from sheer surprise when the magazine fell out. This officer is very lucky he's still alive.

Pilot's Gun Fired in Cockpit

I know, I know, this happened a few weeks ago. I've been watching the news for more information since it happened, since the official line is always "We can't say anything until the investigation is done." I like to make sure that my opinions are as well informed as I can make them. Well, the investigation isn't done yet, but I've learned enough by now to have formed an opinion. However Michael Bane says it better than I can in his blog. Here are some excerpts:

First, a picture of the "safety" system the pilots are required to use.
From Michael Bane:

All true...my understanding is that the gun chosen for the pilots is the double-action-only version using H-K's LEM (Law Enforcement Module) system to lighten the DA pull. Here's the H-K catalog page.

What do we know about double-action only guns, whether they be semiautos or revolvers? Well, the first thing we know is that if you pull the trigger, the gun will go bang. The longer DA stroke guarantees that there has to be a deliberate pull of the trigger for the gun to fire.

Here's an important question...does it take a deliberate finger to pull a trigger? Ummmm, no...the trigger doesn't know or care what pulls it. You can pull a trigger with a pencil, a tree branch or the snagged tail of your shirt. People who carry pocket pistols not in a pocket holster have pulled the trigger with their pocket change. And consider the word "deliberate." A finger on the trigger can unintentionally fire a gun, say if the person whose finger is on the trigger is jossled or bumped, or if they have to grab with their weak hand, which can sometimes cause a sympathetic clinching of hand on the gun. Or let's say your finger is on the trigger when you attempt to reholster the gun...it'll go bang every time...probably the most common neglient discharge in the world.

That trigger thing is why we have moved to holsters for concealed carry and competition that fully cover the trigger guard, blocking access to the trigger. The harder it is to get to the trigger accidentally, the less likely the gun is going to go bang when we don't want it to.

What's another thing we've learned from the last 30 years of practical pistol shooting and the revolution in civilian training about gun safety? An important thing is to minimize the Futz Factor, loosely defined as "Every time you handle the gun, it has the opportunity to go off; reduce the times you handle the loaded gun, and you reduce the opportunities for a negligent discharge."


This from the Crime Files News, one of the few tiny bits of information to leak out no damning the pilot or the gun:

The insane procedures required by the TSA demands that our pilots to lock and then un-lock their .40 side arms was and is a solid recipe for disaster. Did the TSA deliberately create this bizarre and unconventional Rube Goldberg firearm retention system hoping for this result? The sordid history of the FAA and TSA’s total resistance to the concept of arming pilots to protect Americans is in itself a scandal.

Putting a gun into a holster and then threading a padlock through the trigger and trigger-guard is required every time the pilots enter or leave the cockpit.
And, the most important point:

Let's talk about that holster now. Why do we cover the trigger guard? To keep something hard from coming in contact with the trigger. What would we call a holster that has a hole cut in it to allow a person to place a hard object that can potentially come in contact with the trigger of a gun that has no additional manual safety? Unsafe...or more appropriately, stupid.

Very very stupid.

And what would you think if a requirement of your job was to constantly remove such a holster and then place the hard steel bar of a lock through the holster and trigger guard, then remove the lock and redeploy the holster when you came back? Personally, I'd be pretty worried — as a firearms professional, I'd find this system guaranteed to fail. Sooner or later, it goes bang.

And it did.
For the full post, go to http://michaelbane.blogspot.com/2008/03/tsa-stupidity-puts-pilots-at-risk.htmlLink

While I do not believe the conspiracy theories that the TSA designed the rules hoping for something like this (because they've been opposed to the FFDO program from the beginning), the rules do seem to do everything possible to maximize the "futz factor" pointed out in Mr. Bane's article.

I can only add two things to his well written piece.

1) Trigger locks are inherently unsafe. They violate two of the cardinal rules of gun safety: Rule 1 - The gun is ALWAYS loaded; and Rule 3 - Keep your finger (or anything else) AWAY from the trigger until you are ready to fire.

2) Something I have believed for many years - Every gun should have a safety! Even with the (understandable under the circumstances) mistakes the pilot had to have made, a safety could have prevented this. Being double-action-only does not make a gun immune from accidental trigger pulls, or snags, or foreign objects making their way into the trigger guard! It only means that the gun will not fire unless the trigger is pulled. The gun does not care who or what pulls the trigger, if the trigger is pulled it will go bang!

Tuesday, April 15, 2008

Seasonable humor

I found this at www.wayfarersmoon.com (scroll past the comic).
A Friendly Reminder
Tuesday, April 15, 2008

From: Admiral Janicki
To: All Death Star Personnel
Re: Imperial Taxes

I have been asked to remind all Imperial personnel aboard the Death Star that today is April 15th and all personal taxes are due. In light of last year’s ‘Wookie Deduction’ debacle, the 3rd Imperial Tax Division (the Fighting 1040s) has asked me to pass on the following tax hints:

Cloned Stormtroopers may not claim each other as dependents, even though they are technically related.

Maintenance crews may only deduct one (1) Compacter Monster attack.

If strangled by Lord Vader and are:
Add two (2) to Row F: Near Death Experiences
Add one (1) to Row G: Actual Death Experiences

When computing dependents, droids do not count unless you are legally married to one.

If you are Lord Vader, please mark Box A ‘Sith Do Not Pay Taxes.’ Or not. Really, we’re cool either way.

You will check Box 7F ‘I want one dollar to go to the Emperor’s Party Fund.’ Failure to check this box will result in immediate execution.

When computing dependents, alien parasites only count if they are larger than a standard Stormtrooper helmet.

‘Helmet Hair,’ though a consistent problem for all Imperial troops, is not a valid deduction. ‘Armor Crotch’ is a valid deduction for Stormtroopers only.


Sunday, April 13, 2008


I've added links to a couple of other interesting blogs I've found. I think they're interesting, at least.