Seton Hall Legislative Journal, "State Legislatures Stand Up For Second Amendment Gun Rights While the U.S. Supreme Court Reguses to Order a Cease Fire on the Issue>'

The 7th Circuit Opinion that required Illinois to enact concealed carry

The Seventh Circuit opinion mentioned in the post below (Illinois must enact concealed carry to comply with Second Amendment is Moore v. Madigan, 702 F.3d 901 (2013).  A copy is available on Findlaw.  Some excerpts follow:

"Blackstone described the right of armed self-preservation as a fundamental natural right of Englishmen, on a par with seeking redress in the courts or petitioning the government. 1 Blackstone, supra, at 136, 139–40. The Court in Heller inferred from this that eighteenth-century English law recognized a right to possess guns for resistance, self-preservation, self-defense, and protection against both public and private violence. 554 U.S. at 594. The Court said that American law was the same. Id. at 594–95. And in contrast to the situation in England, in less peaceable America a distinction between keeping arms for self-defense in the home and carrying them outside the home would, as we said, have been irrational. All this is debatable of course, but we are bound by the Supreme Court's historical analysis because it was central to the Court's holding in Heller." . . .

"In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. Bishop, supra, at 922–23; Mark V. Tushnet, Out of Range: Why the Constitution Can't End the Battle over Guns 110–11 (2007). Anyway the Supreme Court made clear in Heller that it wasn't going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois." . . .

"Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home,  . . . "

and finally


"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."

It is refreshing to see such honesty and integrity from a federal court.

Illinois and concealed carry, possible appeal to U.S. Supreme Court.

Illinois is the only state that does not allow any form of concealed carry by law-abiding citizens.  The U.S. Court of Appeals held that the state must enact such a law to comply with the Second Amendment.  A bill to do this is before the governor.  But as an Illinois Democratic politician,  he is likely to veto it.  Hre must make a decision by July 9.  The state has asked for an extension of time to decide whether or not to fil and appeal to the U.S. Supreme Court. Stay tuned.

New U.S. S.Ct. decision on Privilege against self-incrimination

U.S. Supreme Court decision: Salinas v. Texas:


As almost all Americans who have ever watched television or gone to a movie know, the Supreme Court held in a case called Miranda v. Arizona that a criminal suspect who is in police custody must be advised of his right to remain silent; if the suspect chooses to remain silent, that silence cannot be used against him in a trial. The question before the Court in this case was whether this protection of silence applies before a suspect is actually arrested. The defendant in this case, Genevevo Salinas, voluntarily went to the police station, where officers interviewed him about a pair of 1992 murders. When asked whether a shotgun given to police by his father would match shell casings found at the crime scene, Salinas did not answer. At his trial for the murders, prosecutors used Salinas’s silence as evidence of his guilt; Salinas was convicted and sentenced to twenty years in prison.

Over the years, the lower courts had been divided on whether prosecutors can point to the “precustodial” silence of suspects. Today the Court resolved that conflict, holding that because Salinas failed to invoke his right to remain silent in response to the officers’ questions, his silence was fair game at his trial. The Court reasoned that the privilege against self-incrimination applies only when it is asserted, and that merely remaining silent in response to questions is not enough.

The Court’s decision was fractured. Justice Alito wrote for a plurality of the Justices (himself, Chief Justice Roberts, and Justice Kennedy), setting forth the rule that the right to remain silent must be expressly invoked. Justices Thomas (joined by Justice Scalia) concurred only in the result, arguing that even if Salinas had invoked his right to remain silent, he still would have lost because the prosecutor’s comments regarding his silence did not compel him to give self-incriminating testimony. These five votes, together, added up to a loss for Salinas, and the rule in Justice Alito’s opinion is the controlling rule going forward. [The Courts 4 “conservatives” and the usual swing-vote, Kennedy, voted in favor of the government.]



Justice Breyer, joined by the remaining three [“liberal” Justices, dissented, arguing that a defendant need not expressly invoke the privilege against self-incrimination.



SOURCE: Scotusblog (edited by instructor)



I agree with the dissent. I believe that provisions in the Bill of Rights should be interpreted broadly and in favor of the individual. “Fair game?” A trial is not about the prosecution taking advantage of suspects. Persons protected by the Bill of Rights are not to be viewed as “fair game.”

Supreme Court rules on AZ voter registration citizenship law

In a 7-2 decision, the Court upheld one part of the law AZ voter registration citizenship evidence law, but invalidated another.

Geo. Zimmerman jury sequestered

As many of you know, the trial of Geo. Zimmerman for the second degree murder of Trayvon Martin is underway.  In a no-brainer, the judge has sequestered the jury.  Unfortunately, Zimmerman has become a symbol and the trial is not about just his guilt, but about race,  guns, defensive use of guns, and related issues.  Jury selection will be crucial for both sides.  It may be difficult for Zimmerman to get a fair trial when a  number of groups and indivuduals have already threatened to riot if he is acquitted.  Right now, I don't give Zimmerman much of a chance for a fair trial in this circus and ideologically charged atmosphere.  Innocent or guilty, everyone deserves a fair trial.

Senate votes re U.N. Small Arms Treaty

Over the weekend, In a 53-46 vote, The senate narrowly passed a measure that will stop the United States from entering into the United Nations  Small Arms Trade Treaty. The Statement of Purpose from the bill read:

"To uphold Second Amendment rights and prevent the United States

From entering into the United Nations Arms Trade Treaty." 

Although the treaty is  vague at points and has been subject to various interpretations, those who voted for the ban on theThe U.N. Small Arms Treaty, which has been championed by the Obama Administration, argued that it  would have effectively placed a global ban on the Import and export of small firearms. The ban could have affected all private, law-abiding gun owners in the U.S. - and had language that could have implemented an international gun registry on all private guns and ammo.  Obama apparently will sign the treaty anyway, at least as a symbolic gesture.



Here are the 46 senators that voted against the bill to preclude the UN treaty.

Baldwin (D-WI)

Baucus (D-MT)

Bennet (D-CO)

Blumenthal (D-CT)

Boxer (D-CA)

Brown (D-OH)

Cantwell (D-WA)

Cardin (D-MD)

Carper (D-DE)

Casey (D-PA)

Coons (D-DE)

Cowan (D-MA)

Durbin (D-IL)

Feinstein (D-CA)

Franken (D-MN)

Gillibrand (D-NY) *Harkin (D-IA)

Hirono (D-HI)

Johnson (D-SD)

Kaine (D-VA)

King (I-ME)

Klobuchar (D-MN)

Landrieu (D-LA)

Leahy (D-VT)

Levin (D-MI)

McCaskill (D-MO)

Menendez (D-NJ)

Merkley (D-OR)

Mikulski (D-MD)

Murphy (D-CT)

Murray (D-WA) Nelson (D-FL) Reed (D-RI)

Reid (D-NV)

Rockefeller (D-WV)

Sanders (I-VT)

Schatz (D-HI)

Schumer (D-NY)

Shaheen (D-NH)

Stabenow (D-MI)

Udall (D-CO)

Udall (D-NM)

Warner (D-VA)

Warren (D-MA)

Whitehouse (D-RI)

Wyden (D-OR)

Note that all who voted against the bill to preclude the treaty were Dems or Independents.  If the recent Senate debate on gun control didn't make it clear, it appears that the Dems are the party of gun control, in spite of all the rhetoric about supporting Second Amendment rights.  Many expect that the Dems will pay for their push on gun control in the next Congressional elections.

Thanks to John Newsome for the lead.

Gun Control Proposals in the U.S. Congress

This is a Congressional Research Service Report that is less than a week old. CRS publications are  usually top-notch and very readable.   Thus far, nothing has come close to passing.  This was a stinging defeat for Obama and his wife, both of whom had personally pushed for new gun controls.  The disgusting dog and pony shows exploting the agony of survivors for political gain did not work either.  However,  many politicians (e.g. Feinstein) have promised to try again.  It ain't over yet. Stay tuned.  Thanks to John Newsome for the link. 

More on NSA "Snooping"

Very good, readable short article on National Security Agency snooping. 

Lack of Broad Based Support by Conservatives for All of Bill of Rights

I have often complained about the many Liberals who are picking and choosing what they like the Bill of Rights and ignoring what they don't like (e.g. Second Amendment). Now it' time to complain about those conservatives who support the Second Amendment but seem unconcerned about the Fourth Amendment.  (See below for some posts on privacy, NSA and Fourth Amendment concerns)  Obviously, too many politicians on the Left and Right put ideology, party loyalty, and getting re-elected over their oath to support and defend the Constitution.  Perhaps we need more with a  flexible libertarian bent (a la this blogger's "cautious libertarianism").

Indiana facing big backlog re concealed carry permits

The concealed carry licensing backlog means delays up to 6 months for those in Indiana who have applied for a concealed carry permit.  More evidence that people are realizing that, in general, the police will not be able to protect you.  It is always good to see law abiding people (those eligible for permits) exercising their constitutional and natural law rights to have common weapons for defensive purposes. Some people naively think that gun control is going to work to protect them.  They foolishly rely solely on the government.

TIH: 6/12/63 The murder of Medgar Evers.

Not only are we in the sesquicentennial of the Civil War, we are also the 50th anniversary of America's tumultuous '60's.  I grew up in the 60's and it's one of those eras that is so different from today.  Great change and great music.
 There was an air of excitement!  Unfortunately, there was much brutal violence in the South.    On June 12, 1963 black civil rights activist Medgar Evers was murdered in his front yard.  This murder was but one of the atrocities by white supremacists that fueled the civil rights movement.  The FBI is running a series on Civil Rights in the 60's.  See the link.

Private group assists in the exercise of 2nd Amend. rights.

This private group aims (pun intended) to assists individuals in exercising their Second Amendment and natural law rights to have ordinary weapons for defensive purposes. Shotguns and training are being given to single women and residents of high-crime neighborhoods.  If you don't own a gun, or don't feel comfortable about using one for defensive purposes, you may not value those rights.  Although I have some discomfort with training 12-year olds, I'm willing to trust their parents.  Hopefully the folks with children who get weapons will have enough sense to keep them secure.

Finally, the statement by David Hemenway (a long time professional gun controller) is not accurate.  The weight of the evidence strongly suggests that gun ownership under certan circumstances can deter crime, and, overall, is effective against armed intruders.  The nation's leading expert on gun control and related matters, FSU Criminology Prof. Dr. Gary Kleck has done much research on these issues and has concluded that guns are used as often for defense as they are used by criminals for offense.

Welcome to Obama's National Security State

Government electronic and other snooping has increased markedly since that fateful day in 2001. The new face of Big Brother should perhaps be termed "The National Security State" rather than just a "Police State." Anyone who thought Obama would bring change in the government approach will be sadly mistaken. The web has gotten markedly broaders since Obama took over. (Also, remember his promise to close Gitmo?) This AP article provides an overview.

More on DNA Sample case, J. Scalia and 4th Amend

The most significant news from the Court t in the past is its five-to-four decision in Maryland v. King, holding that Maryland’s DNA Collection Act – which permits the police to take DNA from people arrested on suspicion of serious crimes and compare it to a database of DNA samples from unsolved crimes – does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court’s opinion, written by Justice Kennedy, holds that the DNA testing procedure is minimally intrusive because it only requires a cheek swab, and because people detained for serious offenses have diminished expectations of privacy anyway. Analogizing the DNA swab to photographs and fingerprinting, the Court further held that the procedure serves the important government interest of facilitating the identification of suspects in custody and is therefore reasonable under the Fourth Amendment.


Justice Scalia – joined by Justices Ginsburg, Sotomayor, and Kagan – took the relatively rare step of reading a fiery dissent from the bench, arguing that because the purpose of the DNA test is not identification, but investigation of crimes, the Fourth Amendment does not permit the police to take and test the samples without a warrant. The dissent has become an instant classic, as Justice Scalia blasts the DNA Collection Act as creating a “genetic panopticon” and excoriates the majority for turning a blind eye to the true purpose of DNA testing. The case has drawn attention because of the unusual division among the Justices: conservative hero Justice Scalia sharply criticized the pro-police ruling, while the more liberal Justice Breyer broke ranks to side with the conservative majority.

The most significant implication of the Court’s decision is that DNA testing for arrestees may become ubiquitous. According to the opinion, twenty-eight states presently have laws similar to the Maryland DNA Collection Act. Expect that number to go up. It is also likely that at least a few states will try to push the boundaries on this issue by authorizing DNA sampling in a broader range of situations – for example, for all arrestees, rather than only those brought in for serious offenses. Readers discussing the case at cocktail parties may speculate about whether states will go even further than that, requiring DNA swabs for anybody trying to enter a secure government building, or obtain welfare benefits. And of course, the case raises a litany of fascinating questions, including whether society’s interest in cracking unsolved crimes justifies suspicionless DNA testing, and more broadly whether advances in technology that enable the government to gather significant amounts of data rapidly and with minimal physical intrusion should be subject to less Fourth Amendment scrutiny. The Court’s answer appears to be “yes” to both questions.

Source: Scotusblog.com

Amongst the conservatives on the Court, and even including Kennedy, Scalia is the strongest supporter of 4th Amend rights.  He has supported the right even when there was precedent that could have been used to allow the search or seizure (e.g.,U.S. v. Jones.  Scalia's "originalism" sometimes pays off in terms of protecting civil liberties (e.g. Second Amendment).  Unfortunately, when it comes to remedies for 4th Amend violations, Scalia seems to be intent on gutting the exclusionary rule and civil liability of officers.

Police may take DNA sample from arrestee

In a 5-4 decision the U.S. Supreme Court held Monday that during the booking process police may take a DNA sample from those arrested for a "serious crime."
"When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”  The federal government and 28  states already do this.  This decision will probably encourage additional jurisdictions to adopt this procedure.

Judge accepts insanity plea by accused CO theater mass-murderer

Perhaps surprisingly, the trial judge in the James Holmes CO theater mass murder case has accepted Homes' insanity plea. He will avoid criminal punishment.  There will be further proceedings on what to do with Holmes next. Stay tuned.

IRS employees lying/misleading statements. Your tax $ at work.

FactCheck.org on IRS officials' veracity.  Getting paid for lying. Your tax $ at work.

Bloomberg and Obama risk Democratic Unity: Going after Dems who didn't vote for gun control.

NYC mayor Michael Bloomberg's obsession with gun control has moved him to
spend money to support defeat of Dem Senators who failed to support gun control.  Some fear this could threaten the Dem. majority in the Senate.  Obsessed people are always problemmatic; those who are billionaires are time bombs waiting to explode.
" . . . Obama’s own political organization, Organizing for Action (OFA), has promised to bring pressure on the four defecting Democratic senators—Pryor, Begich, North Dakota’s Heidi Heitkamp and Montana’s Max Baucus. Jon Carson, the head of OFA, has said his volunteers are less concerned about hurting the reelection chances of Democrats than getting a background check bill through Congress. In recent weeks, the group has held phone banks in Alaska, Arkansas and North Dakota to inform residents of their Democratic senators’ votes against more gun control. OFA volunteers have also protested outside Baucus’s office in Bozeman, even though Baucus has announced that he will not run for reelection after his term expires."




Read more: http://swampland.time.com/2013/05/28/bloombergs-gamble-risking-the-democratic-senate-majority-for-gun-control/#ixzz2UcRD5icd

Obama Admin. Power Grab?

CHILLING FOLLOW UP ON A PRIOR POST.  I guess Obama got scared by all the anti-gun control protests.
"[snip] ...The lines blurred even further Monday as a new dynamic was introduced to the militarization of domestic law enforcement. By making a few subtle changes to a regulation in the [CFR] titled “Defense Support of Civilian Law Enforcement Agencies” the military has quietly granted itself the ability to police the streets without obtaining prior local or state consent, upending a precedent that has been in place for more than two centuries. The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule: “Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.” … ( I notice an apparent anomaly in this excerpt: The United Sates Code [USC] is composed of statutes – enacted by Congress. Agency regulations are often part of the United States Code of Federal Regulations [CFR]. Then there are such compendia as Army Regulations, etc.). [snip]"

Thanks to Prof. Joseph Olson.

Obama Admin. attack on First Amendment rights on campus? (NEW LINK)

According to FIRE:
"In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to order that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent. In a letter yesterday, the government mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser, completely ignoring the First Amendment."

Appears to be another example of left-wing political correctness trumping the Bill of Rigths.  This may be a false alarm, (FIRE is usually reliable). However,  false alarms are better than no alarms when the Bill of Rights in involved.  Stay tuned.

TX House approves licensed concealed carry on state college campuses

The Texas House approved licensed concealed carry in state college campus buildings.The bill faces an uncertain future in the state Senate.  A similar bill last year seemd destined to pass until many University Presidents had a hissy fit. Stay tuned!
Note: under current law licensed concealed carriers can carry on campus grounds, but not in buildings.  This bill allows licensed concealed carriers to carry in buildings.
Opponents apparently believe that somehow, license concealed carriers will become homicidal maniacs once they enter a building.

Latest data on gun crime

The latest report from BJS re Firearms crime:


“Among the highlights of this report:

• Firearm-related homicides declined 39%, from 18,253 in 1993 to 11,101 in 2011.

• Nonfatal firearm crimes declined 69%, from 1.5 million victimizations in 1993 to 467,300 victimizations in 2011.”

Both firearms related homicides and nonfatal firearms crimes declined in spite of the fact that lawful concealed carrying and the number of firearms in society increased markedly during that period. This is the kind of data that gun-controllers don’t talk about. Guns don’t cause crime and gun control will not bring down gun crime. It’s about time people realize that gun control is not really about crime control. It’s part of American’s culture wars and a symbolic crusade (a la Joseph Gusfield) to give a symbolic status victory to one part of American society. Politicians need to pretend that they have solutions to get re-elected. Unfortunately, gun control is a make-believe (let’s pretend) panacea that threatens an important provision in the Bill of Rights.

With regard to how criminals obtain firearms:

“In 2004 (the most recent year of data available), among state prison inmates who possessed a gun at the time of the offense, fewer than two percent bought their firearm at a flea market or gun show. About 10 percent of state prison inmates said they purchased it from a retail store or pawnshop, [Apparently they were legally eligible at the time of purchase] 37 percent obtained it from family or friends, and another 40 percent obtained it from an illegal source.”

Does anyone really think that expanding background checks is going to keep guns out of the hands of criminals? ?There are hundreds of millions of firearms in Ameircan society and the number is rapidly increasing.  The "genie" is already out of the bottle, and the "horse," fled the barn long before anyone even though of closing the barn door.   Expanding the checks will probably mean that criminals (or those with criminal intent) will bypass these outlets and move directly to friends or family.  Although the extent of the problem is unknown, criminals sometimes 'rent' guns from other criminals. 

IL Public Housing Residents get 2nd Amend Victory

One of the most disgraceful and discriminatory forms of gun control is that which attempts to keep firearms from the homes of  public housing residents. These types of laws are not new and many go back to the start of public housing projects.  Does any sane person really think gang members, drug dealers and other criminals who live in public housing are going to give up their weapons? The real victims here are law-abiding residents who live in a constant state of fear.  Of course, such legislation should provide insight into how leaders view law abiding public housing residents.  PH residents won their 2nd Amend. suit in IL, to be treated like everyone else when it comes to 2nd Amend rights.  This is an example of what happens when the rules are made by limousine liberals who reside safe neighborhoods and don't have to live in PH.

Texas Prosecutor to Face Criminal Charges Over Convicting an Innocent Man

Research suggests that misconduct by prosecutors is rampant, and conviction of innocent people is much too frequent. However,  little is ever done. this TX D.A. will  face criminal charges.  Let's hope this is the start of a trend.

O'Connor regrets Bush v. Gore decision

You rarely hear a retired S.Ct. Jusitce admit regret over a decision.  This regret is justified.  Although I "liked" the result in that it set up a  Bush win, I thought the Court was wrong to get involved and the majority opinion was a disaster.  (Another example, I liked the result in Griswold v. Connecticut--consitutional right to "privacy,"  But, the Court's opinion--"penumbras, mis-reading of prior cases, etc.--was a 'joke.") Perhaps unbelievably, the level of trust for the Court and Court's prestige recovered from Bush v. Gore.

Travis County (Austin) TX DA gets 45 day jail sentence.

The District Attorney for Travis Cty (Austin) TX was sentenced to 45 days in jail. Seems harsh for a first-time offender.  However,  her immediate post-arrest conduct was irresponsible, at best. .  As is often the case,  recent, post-arrest conduct has been exemplary. She is not currently planning on resigning.  Don't these people have any sense of integrity?  She should resign.

No Miranda Warmings for (alleged) Boston Marathon Bomber

In a controversial decision, the feds have decided that the surviving suspect in the Boston Marathon bombing will not get Mirands warning.  They rely on the " public safety" exception.  Whether or not this is such a case is open for debate as there is no evidence of bombs elsewhere. Further, such questioning must be limited to public safety issues, not direct questions about the crimes.  However, if anything incriminating comes out in answers to these questions, it is admissible.  With a gunshot wound to the throat and his medical consdition, it may be a while before interrogation can take place.  Further, if he gets an attorney before interrogation starts, that attorney almost assuredly will advise against saying anything--Miranda warnings or not.   This may turn out to be a moot issue.

Surprise: Boston bombing suspects did not have gun licenses, could not legally have purchased handguns

I know it may be hard for some to believe, but these (alleged) criminals wantonly failed to follow state and federal law on firearms. If we only had more laws, these folks would have been deterred from carrying and using guns during their murderous spree.

Female TX DPS trooper indicted for sexual assault for outrageous body cavity search.

If there wasn't a video and an indictment, I'd say this can't possible be true. There is absolutely no justification for these 2 body-cavity searches by the side of the road.  How did this officer think she was going to get away with this.  Video included.  The full, unedited video is here.  Notice there appears to have been no glove change and one victim clearly indicates that she has been violated both vaginally and anally.  Also unbelievable is that the male trooper appears to be an accomplice.  Finally, not only are these two cops sociopathic, they are also stupid.   Why do this in front of the car camera? Did they think the agency would cover for them? What kind of folks is DPS hiring and allowing to go out on patrol? Any you wonder why some people don't trust governments.  Stay tuned.