Wednesday, June 26, 2013

U.S. S.Ct. Voting Rights Decision.

In the Shelby County case, the U.S. Supreme Court struck down part of the federal Voting Rights Act.  It was another 5-4 decision.  This time Kennedy went with the conservatives.  I disagree with the decision.  I have a strong bias against voiding civil rights legislation.  I still think we need the law in many places (e.g. Texas).  I don't trust state legislatures, no matter who controls them, to fairly re-district.  The Court's invitation to Congress to pass a new law to replace the voided section will probably not result in any new legislation. 

U.S. S.Ct. Gay Marriage Decisions

The U.S. Supreme Court handed down its two long-awaited decisions on gay marriage today.  In the federal Defense of Marriage Act (DOMA) case (U.S. v. Windsor)  it ruled the main part of the statute unconstitutional under equal protection and substantive due process.  Kennedy jointed the 4 liberals to make up the 5-Justice majority.  Based on Kennedy's prior votes (Roemer v. Evans and Lawrence v. Texas) which were both "pro-gay," this was not a surprise.  This decision was foreshadowed in part by former Justice O'Connor's concurring opinion in Lawrence.  I agree with this opinion, it enhances both liberty and equality.   It is consistent with prior decisions (e.g. Roemer and Lawrence) and my cautious libertarianism

In the Calif. Prop. 8 case (Hollingsworth v. Perry) the Court held that the anti-gay marriage parties did not have standing to appeal the Calif. U.S. District Court  decision holding that the Calif's anti gay marriage proposition  8 was unconstitutional.  /That lower court decision stands.  Prop 8 is invalid and gay marriage will move ahead in Calif.  The end result is consistent with the result in Windsor.  I agree with the result.

Tuesday, June 25, 2013

Mistrial Declared in Detroit Cop's Manslaughter Trial.

"DETROIT (AP) — A judge declared a mistrial Tuesday after jurors failed to reach a verdict in the trial of a Detroit police officer who fatally shot a 7-year-old girl during a chaotic search for a murder suspect that was recorded by a reality TV crew.

Loud voices could be heard in the jury room a few hours before jurors threw in the towel and were dismissed. They sent three notes, the last one indicating they still couldn't reach a unanimous verdict on the third day of deliberations, despite encouragement from Wayne County Judge Cynthia Gray Hathaway.

Joseph Weekley, a member of an elite police squad, was charged with involuntary manslaughter in the death of Aiyana Stanley-Jones.

He was accused of being "grossly negligent" in how he handled his submachine gun as his black-clad, masked and armed unit stormed the Detroit home to capture a suspect in May 2010. Police threw a stun grenade through a window, and Weekley was the first officer through the door.

He told jurors that he accidentally pulled the trigger during a struggle with the girl's grandmother, but Mertilla Jones denied interfering with the gun. Weekley was not charged with intentionally shooting Aiyana.

The hunt for a murder suspect was being recorded by a crew from "The First 48," a police show on A&E Networks. Some video shot from the sidewalk was part of the evidence."

A new trial is likely.  Stay tuned.

Full article.

Wrong priorities in House Farm Bill Stalemate

A few days ago, the U.S. House failed to come up with a farm bill. As usual, Congress missed an opportunity to cut of the billion dollar handout pipeline to farms and seemed to get side-tracked over the food-stamp program.    Wrong priorities as usual.  U.S. Farmers get $5 billion per year for not growing.  Yes the soil needs to be preserved, but let the farmers who own the soil take care of it. Subsidies to farmers cost $ 20 billion per year.  Crop insurance costs $9 billion per year. What other business do you know of that gets billions from the government in insurance benefits?  Disproportionately, the benefits do not flow to the struggling family farm. Yes, there is abuse in the food-stamp program (abuse is chronic in most federal handout programs), but why penalize those who are truly needy?  Congress needs to focus on the real problem--too many in Congress buying farm state votes and too much log-rolling and back-scratching in Congress, wasting billions.  When is the American taxpayer going to stand up and say "I'm not going to take it any more."

More on the Geo. Zimmerman trial

The George Zimmerman trial is underway.  This trial, unfortunately, as you probably know, is really about more than just his innocence of guilt.  Guns, self-defense and race are hot-button issues underlying this case.  This may be the most racially and ideologically  polarizing trial since the Rodney King and O.J. Simpson.
The attorneys selected a jury of 6 women.  Bad for Zimmerman.  In general women are more likely to be anti-gun, anti-self defense and are more likely to sympathize with the teengage victim than are males.  On the other hand, these jurors were questioned extensively.
The jury is 5 whites and one black. (Fla. law requires 12 jurors only in capital cases).  Bad for the proecution.  Black jurors are likely to feel intense social pressure to convict Zimmerman no matter what.  Although the juror's identity has not and probably will not be revealed, friends, family, employers and spectators will know or figure out who they are and spread the word.  On the other hand, these jurors were questioned extensively.  
Although it's too early to tell, the victory may go to the side with the least incompetent attorney.  The D.A. used the F-word at least 4 times in his opening statement.  Some jurors appeared intitally stunned.   The defense attorney managed to botch his opening statement by starting with a joke.  Where do they find these people?  My prediction--hung jury and re-trial.
Stay tuned. 

Monday, June 24, 2013

Supreme Ct. Decision on UT Austin Affirmative Action

Anyone hoping for a resolution of this case by the Court will be disappointed. The case was sent back down to the U.S. Court of Appeals for the Fifth Circuit.  Tentativley, it looks like a victory for the white applicant at this point. Overall, the Court seems to be continuing its skepticism about race-conscious admissions policies.  Stay tuned!  This case will probably be back before the Court in the next few years.

Tuesday, June 18, 2013

State Legislatures & 2nd Amend: Good article

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.

Monday, June 17, 2013

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.

Friday, June 14, 2013

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.

Thursday, June 13, 2013

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").

Wednesday, June 12, 2013

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.

Tuesday, June 11, 2013

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.

Monday, June 10, 2013

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.


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.

Tuesday, June 04, 2013

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.