Libertarian Leanings

Prosecutorial Discretion

When National Rifle Association chief executive Wayne LaPierre appeared on NBC's "Meet the Press," host David Gregory confronted him with a high capacity magazine in his hand and asked,

“Here’s a magazine for ammunition that carries 30 bullets,” Gregory says. “Now, isn’t it possible that if we got rid of these” — he sets it down and picks up a smaller one — “if we replaced them and said, ‘Well, you can only have a magazine that carries five bullets or 10 bullets,’ isn’t it just possible that we could reduce the carnage in a situation like Newtown?”

The answer is, "No," it won't reduce the carnage, and that's how Wayne LaPierre responded.  But the more interesting thing about their conversation is that it happened in Washington, DC where possession of a 30-round magazines, such as the one in David Gregory's hand at the time, is already illegal.  What's more, NBC asked the DC police, would it be OK if they used the magazine as a prop.  The answer was "No."

“NBC contacted [D.C. police] inquiring if they could utilize a high capacity magazine for their segment. NBC was informed that possession of a high capacity magazines is not permissible and their request was denied. This matter is currently being investigated.” A police spokeswoman confirmed that the e-mail was authentic.

Gregory appears to have used a large-capacity ammunition magazine anyway.

The DC police had little choice but to investigate.  The result?  The case has been given to the DC Office of the Attorney General. 

In an e-mail, a spokeswoman for D.C. Police Chief Cathy L. Lanier said her department has “completed the investigation into this matter, and the case has been presented to the OAG for a determination of the prosecutorial merit of the case.”

Possessing a magazine capable of holding 10 or more rounds of ammunition, even if empty, is a misdemeanor punishable by up to one year in jail and a $1,000 fine.

Should Gregory, the fabulously wealthy host of NBC's award winning "Meet the Press," be thrown in jail because he used a prop for dramatic effect while he interviewed the CEO of the National Rifle Association?  Even the NRA President doesn't think so.

NRA President David Keene told CNN last month that he did not think Gregory should be prosecuted, saying the incident shows “in a very graphic way, perhaps not intentionally, but in a graphic way just how silly some of these laws are.”

It's in the hands of the OAG.  DC's head prosecutor may exercise discretion. 

Prosecutorial discretion refers to the fact that under American law, government prosecuting attorneys have nearly absolute powers. A prosecuting attorney has power on various matters including those relating to choosing whether or not to bring criminal charges, deciding the nature of charges, plea bargaining and sentence recommendation. This discretion of the prosecuting attorney is called prosecutorial discretion.

Call me mean spirited, but I have mixed feelings about this.  More and more we find ourselves living in a society where laws are for the little people.  Like me.  I have no doubt that if I ever made the mistake of putting my hands on a high capacity magazine while inside the DC city limits and in sight of the law, David Gregory would heartily approve of me going to jail for a year and paying $1,000 for the privilege.

On the one hand I don't wish Gregory any harm.  But on the other, if punishing somebody for possession of a high capacity magazine is such a good idea, as he seemed to argue in his interview, shouldn't he, too, be subject to that law?

I can't wait to hear what the DC OAG decides.  David Gregory asked for permission to use the magazine and was refused.  By using it anyway, he deliberately and flagrantly broke the law.  On national TV, no less.  How's that for "in your face!"

It's true that this magazine law is pretty much useless, particularly as it applies to the situation with the host of "Meet the Press."  Why should anybody care if Gregory had a high capacity magazine when he didn't have a rifle to go with it?  There was no threat.  Nobody would be protected if he couldn't bring it onto his show.

The same is true of gun control laws in general.  They don't protect anybody.  Let me step back.  They have always been intended to protect someone, but it's not who you might think.  Gun contols laws were first imposed on U.S. citizens in the "Black Codes" of post Civil War south. 

Penal Code

Section 1. Be it enacted by the legislature of the state of Mississippi, that no freedman, free Negro, or mulatto not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, dirk, or Bowie knife; and, on conviction thereof in the county court, shall be punished by fine, not exceeding $10, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free Negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed for trial in default of bail.

Back then it was the Ku Klux Klan that was looking for protection.  The Klan wanted their raids on black communities to be risk-free. 

Previous issues of America’s 1st Freedom have told the story of how the defeated Confederate states enacted the Black Codes, which explicitly restricted gun possession and carrying by the freedmen. Sometimes these laws facilitated the activities of the terrorist organization Ku Klux Klan, America’s first gun control organization. The top item on the Klan’s agenda was confiscating arms from the freedmen, the better to terrorize them afterward.

Outraged, the Reconstruction Congress responded with the Freedmen’s Bureau Bill, the Civil Rights Act of 1866, the 14th Amendment and the Civil Rights Act of 1870—every one of them aimed at racial subordination in general and racist gun control laws in particular.

President Ulysses S. Grant (1869-77), who would later serve as president of the National Rifle Association, vigorously prosecuted Klansmen, and even declared martial law when necessary to suppress KKK violence.

Reconstruction formally ended in 1877 with the inauguration of President Rutherford B. Hayes and the withdrawal of federal troops from the South. Even before that, white supremacist “redeemer” governments had taken over one Southern state after another.

Because the new 14th Amendment forbade any state to deny “the equal protection of the laws,” gun control statutes aimed at blacks could no longer be written in overtly racial terms. Instead, the South created racially neutral laws designed to disarm freedmen. Some laws prohibited inexpensive firearms while protecting more expensive military guns owned by former Confederate soldiers. Meanwhile, other laws imposed licensing systems or carry restrictions. As a Florida Supreme Court justice later acknowledged, these laws were “never intended to be applied to the white population” (Watson v. Stone, 1941).

In the bad old days the color of your skin determined the extent to which you were protected by law and whether or not you would be allowed use a gun to protect yourself.  The 14th amendment was adopted to fix that.  But as always has been the case, we have legislatures tailoring laws so that favored constituencies are exempted.

And when all else fails we have prosecutorial discretion. It will be interesting to see if it comes into play here.  After all, David Gregory is a very popular and influential guy.  Is there really any reason he should be subject to the same laws as you and me?  I'm sure he doesn't think so.

Cops In Schools

Yes, it's old news, but it's a story worth repeating.  It's about the liberal outrage over Wayne LaPierre, CEO and Executive Vice President of the National Rifle Association.  Last week he held a press conference where he offered the N.R.A. perspective on the Sandy Hook school shooting in Newtown, Connecticut.  Some excerpts:

LAPIERRE: You know, five years ago after the Virginia Tech tragedy, when I said we should put armed security in every school, the media called me crazy. But what if -- what if when Adam Lanza started shooting his way into Sandy Hook Elementary School last Friday, he’d been confronted by qualified armed security? Will you at least admit it’s possible that 26 little kids, that 26 innocent lives might have been spared that day?

...

I call on Congress today, to act immediately to appropriate whatever is necessary to put armed police officers in every single school in this nation. And, to do it now to make sure that blanket safety is in place when our kids return to school in January.

...

So, why is the idea of a gun good when it’s used to protect the president of our country or our police, but bad when it’s used to protect our children in our schools? They’re our kids. They’re our responsibility. And it’s not just our duty to protect them, it’s our right to protect them.

The New York Daily News was one of those liberal news organs that took LaPierre's proposals badly.

Less than two hours after the moment of silence for the dead of Newtown, after the solemn sound of church bells ringing for the children and staff of Sandy Hook Elementary on the last school morning before Christmas, there was Wayne LaPierre, executive director of the National Rifle Association, calling for more guns in America, not fewer.

So LaPierre wasn’t just the biggest gun guy in the whole country on Friday, he was the dumbest, and most delusional, and most dangerous.

...

LaPierre’s solution is a “police officer in every single school and a protection plan for every single school.” More guns! He talks about the Secret Service guarding one President and makes it sound simple to establish a Secret Service for every school in America.

Dumb!  Delusional!  Dangerous!  Deranged!  Really?

Flashback.  The date is November 1, 1998.  The New York Times reported,

Two weeks ago, President Clinton announced a program called Cops in Schools, aimed at making it easier for school districts to get money to hire police officers in hopes of preventing the types of shootings that have resulted in the deaths of students and teachers in half a dozen schools in the last three years.

Governor Whitman recently encouraged local school districts to invite police officers to patrol schools. And the state Attorney General's office and Department of Education have just drafted new guidelines for school-police partnerships.

Although most school districts have police officers teaching the DARE antidrug program, the police are still rare in schools in other capacities.

Security is usually handled by private firms, except in some urban settings like Jersey City, where officers have patrolled five city high schools for more than a decade.

Turns out Clinton's proposal for Cops in Schools was adopted.  The Community Oriented Policing Services (COPS), which falls under the United States Department of Justice, includes a COPS in Schools (CIS) program.

COPS has announced 19  rounds of funding under the COPS in Schools program, including five that were a part of the Safe Schools/Healthy Students Initiative, a joint initiative between the Departments of Justice, Education, and Health and Human Services. The Safe Schools/Healthy Students grant program was developed to provide students, schools, and communities with the benefit of enhanced educational, mental health, and law enforcement services to promote a comprehensive healthy childhood development.

COPS announced the first round of the CIS program in April 1999, and the most recent in July 2005. COPS has awarded in excess of $753 million to more than 3,000 grantees to hire more than 6,500 SROs through the CIS program. COPS has provided more than $10 million to hire approximately 100 SROs through the Safe Schools/Healthy Students program.

The contradictions that coexist in the progressive mind are pretty easy to figure out, though.  A cherished progressive goal is the disarming of American citizens.  If progressives had their way, private ownership of firearms of any kind would be strictly forbidden and the ban would be vigorously enforced. 

Bill Clinton was a champion of gun control.  His administration was responsible for the first assault weapons ban, a predictably useless piece of legislation from the stand point of preventing violent crime.  But it's purpose wasn't so much to prevent crime as it was to condition the American public to the gradual infringement upon the citizens' right to keep and bear arms.  So when the great and wonderful Clinton called for Cops in schools, what a great idea.  The New York Times concluded its article on Clinton's proposal on a positive note.

''The bottom line is to make schools safer,'' said Chief Stephen J. White of the Doylestown, Pa., police department who is a juvenile justice expert with the International Association of Chiefs of Police. ''And you're going to do that by making officers more accessible to students and teachers, especially in schools that have trouble with crime and violence.''

What a contrast from the reception given Wayne LaPierre.  As head of the N.R.A. Mr. LaPierre is a defender of the U.S. Constitution, in particular the Second Amendment rights.  He opposes gun control and so the liberal/progessive media opposes him.  Here's a more recent reaction from the New York Times to essentially the same proposal as the one implemented by Clinton in 1999.

We cannot imagine trying to turn the principals and teachers who care for our children every day into an armed mob. And let’s be clear, civilians bristling with guns to prevent the “next Newtown” are an armed mob even with training offered up by Mr. LaPierre. Any town officials or school principals who take up the N.R.A. on that offer should be fired.

Mr. LaPierre said the Newtown killing spree “might” have been averted if the killer had been confronted by an armed security guard. It’s far more likely that there would have been a dead armed security guard — just as there would have been even more carnage if civilians had started firing weapons in the Aurora movie theater.

Is police protection in schools a good idea only when Democrats propose it?  Is armed security appropriate for, let's say the New York Times building but not for the elementary school down the street?  According to the liberal media, the answer to those questions would seem to be, "Yes." 

And the children of Sandy Hook?  They've just become the latest symbols in the political cause of gun control.

Should The US Be More Like China?

In the immediate aftermath of the Aurora killing spree, gun control advocates jumped at the chance to propose new gun control legislation.

Sen. Frank Lautenberg's (D-N.J.) office is saying that he plans to reintroduce legislation that would curtail the ability of a shooter to fire at length without reloading.

"If reports are correct and a high-capacity gun magazine was used to commit these awful murders, Senator Lautenberg will absolutely renew his effort to limit the availability of this dangerous firearm attachment," Lautenberg's communications director Caley Gray told The Huffington Post.

Lautenberg, one of the most vocal gun control advocates in the Senate, introduced a bill to limit high-capacity magazines following the shooting of former congresswoman Gabrielle Giffords. The shooter in that instance fired his gun more than 30 times without having to reload. The bill went nowhere.

Early reports have suggested that the accused shooter in Aurora, James Holmes, also used a high-capacity magazine on his assault rifle. And that alone could breathe new political life into the New Jersey Democrat's legislative hopes.

Meanwhile, New York Mayor Michael Bloomberg he urged presidential candidates Barack Obama and Mitt Romney to say what plans they have for new federal gun laws.

New York City Mayor Michael Bloomberg, an ardent gun-control advocate, immediately jumped on the Aurora, Colo., shooting spree to demand the presidential candidates “tell us what they’re going to do about” such mass shootings.

Bloomberg’s remarks came during an interview on WOR News Talk Radio 710 in New York. “Soothing words are nice,” said Bloomberg. “But maybe it’s time the two people who want to be president of the United States stand up and tell us what they’re going to do about it, because this is obviously a problem across the country. And everybody always says, Isn’t it tragic?”

Bloomberg urged the nation’s governors to speak out about the shooting. “I mean, there are so many murders with guns every day. It’s just gotta stop,” he said.

What to do?  Well as it happens, progressive politicians are urging that the U.S. become more like China, though not specifically as it relates to gun control.  Here's Elizabeth Warren who is hoping to recapture Scott Brown's Senate seat for the Democrats.

Massachusetts residents who tuned in to the Olympics opening ceremony saw a new 30-second campaign commercial from the Democratic candidate for U.S. Senate, Elizabeth Warren, that said America should be more like Communist China.

“We've got bridges and roads in need of repair and thousands of people in need of work. Why aren’t we rebuilding America?” asks Warren, a professor at Harvard Law School who served in the Obama administration. “Our competitors are putting people to work, building a future. China invests 9 percent of its GDP in infrastructure. America? We’re at just 2.4 percent. We can do better.”

Which gives me an idea.  China is not notorious for gun rights.  Maybe by following the Chinese example on gun rights we could prevent mass killings in the U.S.  Or not.

BEIJING (AP) -- A teenager killed eight people with a knife and wounded five more in northeast China after falling out with his girlfriend, state media said Thursday.

The teen killed two of her family members and six more people before fleeing, the state-run Legal Daily newspaper said. It reported he was caught but did not describe the circumstances.

Ah, but isn't that just one isolated case?  Well, not exactly.  According to the same AP article quoted above,

Violent crimes are growing more common in China. There was a string of knife attacks against schoolchildren across the country in early 2010 that killed nearly 20 and wounded more than 50.

Maybe China would do better to follow the example of U.S. Democrats and propose knife control legislation.  They already have gun control.  The progressive solution is always more control and we can see how effective that's been.

VPC

Eugene Volokh reminisces about the Assault Weapons Ban with a portion of a 1998 press release from the Violence Policy Center.

'...Assault weapons -- just like armor-piercing bullets, machine guns, and plastic firearms -- are a new topic. The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons -- anything that looks like a machine gun is assumed to be a machine gun -- can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these weapons....

So when gun rights supporters worry that "assault weapons" bans are (1) attempts to grease the slope to restrictions on handguns and other guns, and (2) attempts to capitalize on public confusion about what assault weapons really are, they are really only saying what the Violence Policy Center has itself already said.'

We have yet another example of liberal wisdom, in which we Americans must be deceived into supporting the policies that are best for us. 

Victory for individual rights

"Ecstatic" may be the word to describe Randy Barnett as he reacts to the Supreme Court's decision in District of Columbia v. Heller.  The Court ruled DC's ban on handguns was an unconstitutional violation of the Second Amendment.  Writing in the Wall Street Journal, Barnett gives highest praise to the reasoning in Justice Antonin Scalia's majority opinion.

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court.

Barnett is also optimistic about the future for individual rights in America.  Once again, from his WSJ editorial:

...how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.`

Writing in the Volokh Conspiracy, Barnett rejoices at the discovery of another boost to individual rights found in Scalia's opinion.

SUPREME COURT ADOPTS INDIVIDUAL RIGHTS INTERPRETATION OF THE NINTH AMENDMENT:! Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash.

Adds Barnet, "...this is big."

Massacre

The shooting at Virginia Tech yesterday is the worst in U.S. history.  In all 33 people were killed, including the gunman, a 24 year old Asian man on a student visa who was reported to have shot himself.

A gunman yesterday killed 30 persons in a Virginia Tech classroom building before killing himself about two hours after two persons were found fatally shot in a school dormitory.

University officials said in a press conference last night that they're still investigating whether the two incidents are related. Officials could not say last night whether the same person was the shooter in both incidents.

Above the law

The Honorable Jim Webb, Democratic Senator from Virginia, is somewhat less than forthcoming about the criminal investigation of his aide, Phillip Thompson, who was arrested March 26 for carrying a loaded pistol into the Senate.

To one of the reporters present, this sounded as though Webb were saying not only that he carried a gun with him when he was in Virginia, where it's legal, but also that he carried a gun with him when he was in D.C., where it's not. (D.C.'s handgun ban was recently struck down by the D.C. Court of Appeals, but it remains in force while the city government seeks a review by the full D.C. Circuit.) The reporter therefore asked, "Do you, senator, feel that you are above Washington, D.C.'s gun law?" Webb replied: "I'm not going to comment in any level in terms of how I provide for my own security."

Translation:  When asked if he was above the law, Webb answered that he is undeniably above the law.  We must not forget that by opposing President Bush and opposing the war in Iraq, he is a Person of Unquestionable and Immense Goodness.  Therefore he is entitled to say or do anything he pleases at any time.  Under those circumstances one could hardly expect the Violence Policy Center or the Brady Campaign to get all worked up over a minor thing like Webb or his aide carrying a loaded pistol into the Senate.

Afterthought:  I should point out, I have no problem with Webb carrying his loaded pistol anyplace he'd like, including the Senate floor.  He may be a liberal wack job, but he's not crazy and there's no chance he'd suddenly decide to drill one of his esteemed colleagues.  Well, maybe there's a chance, but it's 70-30 nobody would mind if he did.  Be that as it may, the non-reaction from those who would protect us from ourselves is just so predictable.  Amusing even.  But just imagine if it was a Republican Senate aide tried that trick.

Second amendment victory in D.C.

A Washington Times editorial applauds recent court rulings that uphold a citizens right to self-defense through gun ownership in the District of Columbia.

Whatever happens, this 2 to 1 ruling is a victory for ordinary citizens and the Constitution. The decision by the U.S. District Court of Appeals for the District of Columbia shifts the gun-control debate toward what is frequently called a "conservative" interpretation of the Second Amendment but what is properly called a constitutional interpretation. A citizen holds an inherent right to own firearms for self-defense, we have long contended, based on the plain language of the Second Amendment, which was the founders' commonsensical recognition that self-defense is itself an inherent right of a free people.

Dissenting Judge Karen LeCraft Henderson argued that "the District is inescapably excluded from the Second Amendment because it is not a State."  I think it's amazing that a judge would consider any U.S. citizen "inescapably" exempt from the bill of rights, even D.C. residents.