Repeal of Virginia's restaurant CHP ban passes

According to the VCDL Blog, SB334, repealing the ban on concealed carry in restaurants, passed the House today unchanged with a vote of 72 to 27! It should be in front of the Governor McDonnell in a week or so. He has indicated in the past that he would sign such a bill, so it's pretty much a done deal.

McDonald v. Chicago - Oral arguments today

Update: Analysis: 2d Amendment extension likely (from SCOTUSBlog)

This is troubling, though:

The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge. [emphasis mine]

Why is that relevant? Or, to echo a point Mr. Gura made at one time, the SCOTUS should be concerning itself with what the Constitution means, not whether it’s a good idea to follow it.

-----
Just a reminder, oral arguments in McDonald v. Chicago are at 10:00 today. Apparently, SCOTUS has decided they will not release the audio, but the transcript should be available later today.

Obama gets his first Supreme Court pick

Justice David Souter is retiring at the end of this term in June.

This likely doesn't change much. He's been one of the reliably liberal justices, and Obama will likely choose another liberal. On the other hand, justices often end up surprising even the presidents who chose them.

The Dems now have (or they should by that point) a filibuster proof majority if the votes break down along party lines, so he'll probably get whoever he wants unless there's something seriously wrong with whoever he nominates (like they haven't paid their taxes, or som... Oh. Right.).

Souter joined both dissenting opinions in Heller v. DC, and I'd be willing to bet that one of Obama's "acid tests" for any nominee will be about guns, so from a gun rights perspective there's little hope for a positive change,* and we're probably looking at the same thing for most other key "conservative" issues, too. By the same token, there's not much risk for a negative change, either. Barring any surprises, this does not seem to be a game-changing vacancy.


* I did not do that on purpose. On the other hand, I left it there when I noticed it. [bugs bunny voice]Ain't I a stinker?[/bugs bunny voice]

Our Governor's Hypocrisy (Updated)

As expected, Governor Kaine has vetoed SB1035, which would lift the ban on concealed carry in restaurants that serve alcohol.

Remember, CHP holders are some of the most peaceable and law-abiding citizens there are. We voluntarily undergo training and an extensive background check to obtain a CHP. We voluntarily submit information on our homes to the state, and agree to keep that information up to date. Where such statistics are tracked, CHP holders have a much lower rate of committing crimes than the general population, and a crime rate that is even lower than that of the police. Yet the mere fact that we would carry concealed in a restaurant that serves alcohol, even while being prohibited from actually consuming alcohol, somehow puts the public "at risk."

But open carry in restaurants that serve alcohol is allowed in Virginia. How is requiring me to expose my firearm when I go into these restaurants better? Keep in mind that, in Virginia, there are no "bars." There are only restaurants "for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board."

Many "bars" are open during the day in order to meet their required percentage of food sales, and function primarily as restaurants during that time. Many restaurants have an ABC license just so they can serve someone a beer or some wine with their dinner. Virginia law makes no distinction between the two. It is quite often difficult to know if a restaurant has an ABC license until you sit down and realize that there are drinks listed on the menu.

Just as an example, there is a little BBQ restaurant in downtown Blacksburg. You order your food at the counter, and wait until they call your name to pick it up, and you sit at a picnic table inside (that's right, they don't have real seating, just a couple of picnic tables). Would you expect a place like that to have a license to serve alcohol? (Of course you do, since I'm using it as an example. But would you if I wasn't?) Yet walk in while you're carrying concealed, and it's a class 1 misdemeanor. And remember, "ignorance is no excuse." Is this the second restaurant you've done this at? Now it's a felony, and you can never (legally) own a gun again.

But where's the hypocrisy? Well, in his veto, he makes this comment:

"Allowing concealed weapons into restaurants and bars that serve alcohol puts the public, the employees, and our public safety officers at risk."

He dares to say this, laying the danger on "concealed weapons" and not the people carrying them, yet last year he signed a bill allowing Commonwealth's Attorneys and Assistant Commonwealth's Attorneys to carry concealed, without needing a permit, without requiring any training and exempting them from the restaurant ban.

You see, in Governor Kaine's mind, Commonwealth's Attorneys are special. It's not really the weapons he has a problem with (regardless of what he says), it's weapons in the hands of ordinary citizens that he has a problem with.

Tyranny is as tyranny does.

Update:

There's a good discussion going on about this over at SayUncle's. Sailorcurt has pointed out to me that the law allowing Commonwealth's Attorneys to carry in restaurants allows them to drink while carrying concealed (as long as they aren't "intoxicated," which is only vaguely and subjectively defined in Virginia law - Sec. 4.1-100 contains the only definition I could find.) SB1035 would have explicitly prohibited CHP holders from consuming any alcohol. Yet another example of how Governor Kaine believes his "Only Ones" are better than the rest of us.

Published CHP Information

I have now gotten a look at the list in question from the Chatham Star-Tribune (with thanks to Phillip Van Cleave, VCDL President), and while it's still very bad, it's not - quite - as bad as I initially thought. The good thing? It's not a list of all CHP holders in the county. The bad thing? It is a list of people in Pittsylvania county who were issued CHPs in January. Which leads to my next question:

Is this a regular item in this paper?

I won't post the images I received, for obvious reasons. It does look like it's not a complete list, and no addresses are given. On the other hand, enough information is given that finding someone using the list would be very easy.

On the gripping hand, it's a good example of why the legislature needs to act to stop this garbage.

Another paper publishes CHP information

According to the VA Citizens Defense League another Virginia paper, the Chatham Star-Tribune, has published a list of CHP holders. I'm currently trying to get verification and more detail.

This one is personal, as my parents live in that area.

More (hopefully) after work.

UPDATE:

It should be noted that, while I have no reason to mistrust or disbelieve VCDL, I have not been able to confirm this personally. I have not been able to locate the list, or any reference to it, on the Star-Tribune's website. I posted a comment requesting more information on the VCDL blog entry I linked to above, but have not yet received a reply.

If anyone can corroborate this, please let me know. I'd like to know if my parents (or any other family members) are on the published list, so I can make them aware.

Update on the Virginia Tech Murder

From the Roanoke Times:

When Virginia Tech authorities arrived Wednesday night at a cafe inside the Graduate Life Center, they found a decapitated female victim who had arrived on campus just two weeks ago and a young man they have now charged with killing her.

The decapitation makes this a death penalty case.

This case has rekindled the campus concealed carry debate in the comments sections of many of the sources I linked to in my previous post, including some PSH. I encourage any readers I might have to go and contribute.

I'm on my lunch break right now, so I can't really get into this now, but I'll have more after work.

UPDATE:
Rough afternoon at work, so I'm not really up to a good commentary right now. Additionally, a comment I heard at work leads me to believe I should hold off on further posts on this issue for a little while. (It has nothing to do with me, the blog itself, or my previous posts. That's all I can say at this point.)

The official White House policy

We all saw this coming a while ago, but it's the official White House policy now.

Address Gun Violence in Cities: Obama and Biden [...] support closing the gun show loophole and making guns in this country childproof. They also support making the expired federal Assault Weapons Ban permanent. [Emphasis mine.]

(Scroll down to "Crime and Law Enforcement" in the linked page for the full paragraph.)

Be afraid, and be prepared.

(via a comment at Snowflakes in Hell)

Vigilantes rise in Mexico

Shadowy vigilante groups are threatening Mexico's drug gangs near the U.S. border in retaliation for a wave of murders and kidnappings that killed 1,600 people in this city alone last year.

Honestly, as bad as the situation in some parts of Mexico has gotten, I've been expecting this for a while. Not only have there been a massive number of murders, but many have been brutal, and some have been terrorist-style executions. But what really gets me is this:

"People's reactions are understandable. But this is not the route we should take to solve things," said Andreu Rodriguez, an opposition lawmaker and the head of security issues in Chihuahua's state legislature.

What else are they supposed to do? The government obviously can't protect them, and you won't let them own the weapons they need to protect themselves! The only thing they can do is band together and try to fight on their terms, not the gangs' terms.

"We cannot tolerate the presence of these type of faceless, anonymous groups," said Manuel del Castillo, a spokesman for the state government.

Again, what other options do they have? If they are open in their defiance of the gangs, not only will they become the next victims, but the gangs will likely target their friends and family, too. Plus, they will have to worry about the government arresting them for "vigilanteism" when all they are doing is trying to protect themselves, their families, and their neighborhoods, which is something their government - that would be you Señors del Castillo and Rodriguez - has utterly failed to do.

I may come across here as a fan of vigilante activity. Despite a certain fondness for the old Shadow radio shows, and innumerable comic books, I don't really approve of vigilanteism. I prefer the rule of law and trial by a jury of one's peers. But in this case, the police, the courts, and even the military have shown their inability to protect the citizens they have rendered helpless through disarmament, so I find myself left with the question:

What else can they do?

Rights? What rights?

This is why we must not submit to licensing a Constitutionally protected right! Or any Right, for that matter.

On the whole Plaxico Burress mess.

Xavier has a post up with his take on Plaxico Burress. While I agree that Plaxico is a complete idiot, and a thug, I have to disagree with the overall thrust of the post, which seems to be that we should let him hang (figuratively) for what he did, and that he should not be allowed to use the Heller decision to challenge the law he's being charged under. I urge you to read his post, and my comment, which I'm also posting here because it sums up my position fairly well.

I'm afraid I have to disagree with you on this one, Xavier. If you believe the law he broke is unconstitutional, then his motivation, knowledge, intent, recklessness, stupidity, and arrogance should all be irrelevant. He has the same right to challenge the law on Constitutional grounds as anyone else. His money simply gives him a better ability to do so, and his fame is what brought it to our attention. Right or not, that is the way it is.

Heller does apply, not because it applies to him, or to the situation, but because it applies to the law that he is being charged under. If New York's law equates to a de facto ban on handguns, it is unconstitutional under Heller, and a persons reasons and intent are irrelevant. Even if he was carrying it so that he could go kill someone later, he still should be able to challenge the law in question. An unconstitutional law should be challenged at every possible opportunity.

Is Plaxico Burress an ideal person to be doing this? No. Is he one of us? Heck no. Should he be charged with other crimes? Yes, he should be charged with criminal negligence, reckless endangerment, making false statements to police, and (if it's in New York's laws) carrying a firearm while intoxicated. He's an idiot, and it's only blind luck that no on else was injured or killed.

You said "If he decided to go, he did not need to carry a gun." Since when is need supposed to be a requirement to exercise one's Second Amendment rights? Since when is the lack of ability to hire bodyguards, or the lack of "other options" supposed to be a requirement to exercise one's Second Amendment rights?

It is not about "bend[ing] the law unjust when the man who caught the winning touchdown in the 2008 Super Bowl violates it" or for getting him "preferential treatment in a court of law." It's about striking down an unconstitutional law. To paraphrase your own conclusion, "The Constitution is simply the Constitution, and it applies to New York City."

*Please note that the "stupidity" label for this post is for Plaxico Burress's stupidity, not Xavier. I have nothing but respect for Xavier, and I don't think he's stupid, or even being stupid in his post.

You can’t have effective gun control in a free society.

Jim W makes an excellent observation in a comment over at SayUncle.

The main problem is that gun control people think that they can take guns out of the hands of criminals by passing laws.
[...]
Without prison type levels of control, you can’t effectively disarm people who don’t want to be disarmed. And even then, you are not going to have a foolproof success rate.

And if these measures barely work in prison (which is enormously expensive and the residents have no rights at all) it sure as hell isn’t going to work in a society where people have rights to privacy and not being searched, etc. You can’t have effective gun control in a free society. [emphasis mine.]

Think about it. In prisons - where the inmates are subject to detailed searches whenever the guards want, where their contact with the outside world is severely limited and constantly monitored, where their daily movements and activities are severely restricted and constantly monitored - prisoners still get weapons, and still kill other prisoners.

If we can't keep weapons out of prisons - the most restrictive environment we can create - there is simply no possibility of keeping them out of a free society.

The Dangers of Disarmament, and of relying on others to protect you.

Sometimes they won't.

There were armed policemen hiding all around the station but none of them did anything," he said. "At one point, I ran up to them and told them to use their weapons. I said, 'Shoot them, they're sitting ducks!' but they just didn't shoot back.

and

"I told some policemen the gunmen had moved towards the rear of the station but they refused to follow them. What is the point if having policemen with guns if they refuse to use them? I only wish I had a gun rather than a camera." [emphasis mine]

From an interview with a photographer in Mumbai, about the terrorist attacks.

Heller, Round 2!

Really, who didn't see this coming?

In a complaint filed Monday in U.S. District Court, Dick Heller and two other plaintiffs allege that the city's new gun regulations still violate rights guaranteed under the Constitution.

h/t to David Codrea at The War on Guns.

A Missed Point About Heller

I never got around to posting an analysis of DC v. Heller. There have been so many others on the web who have, and have done a better job than I probably could, that I just didn't do it. (And I succumbed to a bit of Heller "burnout" reading so many of them.) But there's one point I've noticed missing from most of those otherwise excellent blog posts. I've mentioned it in a couple of comments, but haven't really seen it anywhere, so here it is:

Heller will eventually lead to a ruling that a state may prohibit either open carry or concealed carry, but not both.

There are two key passages:

As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

and:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

DC v. Heller, 554 U. S. ____ (2008), p. 56-57, (PDF p. 59-60)

Heller dealt only with carrying firearms within one's home. However, by so inextricably joining the 2nd Amendment to the right to self-defense, the Court has left the door wide open to a future ruling that some form of carry (open or concealed) must be allowed outside the home as well. This follows from the simple fact that a person's right to self defense does not end when he leaves his home. There is ample case law supporting an individual's right to self defense, and most of it deals with situations where the individual in question is not at his home or place of business.

From this it is simple. If I have the right to self defense outside my home, and that right is "central to the Second Amendment right," then a law restricting my Second Amendment right only to my home cannot be constitutional. I have that right in any place that I have the right to self defense.

DC v. Heller - First Impressions

Not done reading it yet, but I am done for today. I prefer to hold my comments until I've read the whole thing, and this one is 60+ pages for the majority opinion, and 157 pages total!

Preliminary opinion, based on the syllabus, what I've read so far, and what I've seen on other blogs? More good than bad: it established the 2nd Amendment as protecting an individual right, which is very important, and gives lower courts a good starting point. On the other hand, it does not rule out licensing and/or registration. On the gripping hand, for jurisdictions that do require licensing and/or registration, it seems to say that only shall-issue would be constitutional.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

District of Columbia, et al. v. Heller, Slip Op., p. 64 ( p. 67 of the PDF) (emphasis added)

Additionally, while the majority does not specifically address the scrutiny issue, footnote 27 is promising because it outright rejects rational basis scrutiny.

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Heller, Slip Op., Footnote 27, p. 56, 57 (p. 59, 60 of the PDF)

While footnotes are considered dicta, footnotes in a Supreme Court majority opinion are often considered more binding than circuit court decisions, and are usually given more weight by lower courts than the dissenting opinion in the same case.

Well, that's more than I planned on getting into tonight. More later this weekend!

Heller Affirmed!

The Supreme Court affirmed the D.C. Circuit Court's decision in Heller.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

DC v. Heller, Syllabus, Available here.

More after work.

SCOTUS Watch

No Heller today. Should be tomorrow.

They also ruled the death penalty unconstitutional for child-rape. My initial opinion is strongly opposed to that ruling, but I haven't read it for details yet. It appears to have been a 5-4 vote split right across conservative/liberal lines. I'm disappointed, but not surprised. I'll probably do a more detailed post about this one later.

Welcome to Soviet Washington, DC. Your travel papers please.

This is being covered by several blogs, but I had to put my two cents in anyway.

This is how tyranny begins. Small infringements on rights are made to sound reasonable, due to circumstances at the time. The tyrants-to-be build on people's fears, and propose 'solutions' that may or may not work to fix the problem, using fear to get people to consent to give up rights and freedoms. Then another fear comes along, and the tyrants-to-be do it all over again. This time it's easy to go a little farther, to infringe peoples rights even more, because people are used to the last infringement. It's normal to them now. So a bigger infringement is seen as being not much, because it's not a lot more than what people are used to. And people are afraid, and willing, because it might fix the cause of their fear. (This works even better if the previous infringement even appears to have worked.) Eventually, you have tyranny.

How does this apply to DC? First you have the intermittent checkpoints they're creating now. Checking peoples ID for their addresses and, if they don't live in the neighborhood, making them give a 'legitimate purpose' to enter. Once people get used to that, and start thinking it's 'normal' and 'legitimate,' they'll say "We're seeing results, but it's not as effective as it could be. There's still a crime problem." The next step will be to make the checkpoint permanent. Then once people are used to that, they'll add more. Then they'll say "It worked in this neighborhood, we're going to do it in other 'high crime' areas." Other cities will start, because "it worked in Washington." Eventually, we'll need to state a 'legitimate purpose' when you try to cross state or even county lines, and to enter cities. Then you'll have to state a 'legitimate purpose,' and get government approval, before you travel. Travel papers. Just like Nazi Germany or the Soviet Union.

If anyone thinks this is far-fetched, that it could never go that far in America, look at gun control for an example. Washington DC is a good place to start. First they started restricting some guns. They restricted when and who could carry guns away from home. Who could carry concealed. Soon, very few could own a handgun. Eventually, the laws became so pervasive that they dictate what you can do with a gun inside your own home. Today, carrying a functional gun from one room to another in your own home is illegal in DC.

Look at gun control in Canada. In Great Britain. In Australia. The American Colonies of the British Empire. (Wait, that last one didn't really take, did it?)

Look at Nazi Germany. Soviet Russia. They started with small infringements, or infringing the rights of unpopular groups. Then more, bits and pieces at a time. Eventually, they fell into tyranny.

If we do not stop this today, if we allow these small, popular infringements to continue, they will build into tyranny. It may take ten, fifty, or one hundred years, but it will happen.

Unless it is stopped today.

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