Remember, gentle reader, that if you’re going to lose, lose big. And then be a total dick about it.

I got the bulk of my gloating in by quoting Conan the Barbarian, but I couldn’t let Bloomberg’s and Giffords’s post-gun-control-failure statements just sit there.

Bloomberg, the micro-managing tyrant of NYC, said:

Today’s vote is a damning indictment of the stranglehold that special interests have on Washington. . . . More than 40 U.S. senators would rather turn their backs on the 90 percent of Americans who support comprehensive background checks than buck the increasingly extremist wing of the gun lobby. [emphasis added]

Gabrielle Giffords, who was tragically shot in the head by a lunatic and then granted supreme moral authority by the hard-core anti-gun crowd, said much the same thing:

I watch TV and read the papers like everyone else. We know what we’re going to hear: vague platitudes like “tough vote” and “complicated issue.” I was elected six times to represent southern Arizona, in the State Legislature and then in Congress. I know what a complicated issue is; I know what it feels like to take a tough vote. This was neither. These senators made their decision based on political fear and on cold calculations about the money of special interests like the National Rifle Association, which in the last election cycle spent around $25 million on contributions, lobbying and outside spending. [emphasis added]*

President Obama, of course, was not one to leave the special-interest-bashing to others, as the New York Times noted:

Standing in the Rose Garden next to former Representative Gabrielle Giffords and other victims of gun violence, Mr. Obama flashed anger as he said that the gun rights lobby had “willfully lied” about the legislation, and that Republicans and Democrats had “caved to the pressure.”

Bloomberg, of course, founded and bankrolls Mayors Against Illegal Guns, a notorious anti-gun organization filled with criminal mayors. Giffords similarly started her own super-PAC to push for strict gun control.

I’m not saying that Bloomberg and Giffords aren’t free to spend their money (or in the case of Giffords, donor money) to lobby for policy changes they support. Free speech and the right to petition legislators and the government for the redress of grievances are at the heart of our political system.

That said, it’s disingenuous at best, and damnably hypocritical at worst, to bemoan the grip that other special interests have on Washington merely because they defeated your special interests.

Gun control isn’t about guns. It’s about control. Control of you, gentle reader. I’ll leave you with an excerpt from Rudyard Kipling’s The Gods of the Copybook Headings:

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”

*For a complete list of the various fallacies Giffords employs in her blatant attempt at emotional blackmail, check out James Taranto’s response at the Wall Street Journal.

Intermediate scrutiny is the new rational basis

At least in the Fourth Circuit.

The Fourth Circuit Court of Appeals’ decision reversed the district court’s decision in Woollard v. Sheridan (which had invalidated the Maryland concealed carry statute’s requirement that an applicant show good cause for issuance of a concealed carry license).

The court quoted legislative “findings” supporting the law as written:

(1) the number of violent crimes committed in the State has increased alarmingly in recent years;

(2) a high percentage of violent crimes committed in the State involves the use of handguns;

(3) the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals;

(4) current law has not been effective in curbing the more frequent use of handguns in committing crime; and

(5) additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

The court even notes that these findings (adopted in 2002), have not been substantially changed since the Maryland legislature first adopted them in 1972.

Somehow, despite the passage of 30 years from the legislature’s initial adoption to its re-adoption of these findings, the situation in Maryland has not changed (after all, if it had worked, and crime had gone down in response to any laws based on these findings, surely the present findings would differ by at least crediting the current harsh laws for the drop in crime). This is in fact strikingly similar to the Supreme Court’s current case on the Voting Rights Act, in which Congress had adopted the same “findings” today as it did at the VRA’s inception–in 1965.

The Fourth Circuit went on to list several other “findings” (I won’t reproduce them here; if you click through to the Volokh Conspiracy and then to the opinion itself, you can read them on pp. 26-28). This reads like a litany of standard gun control fears–essentially that liberalized carry will take us back to the wild west. It hasn’t (for example, despite similar claims by opponents of Virginia’s bar and restaurant carry bill, crime didn’t increase–it dropped).

Maryland essentially argued that they should be able to deny carry licenses to the vast majority of applicants because of public safety, and the Fourth Circuit went along with it (citing heavily to the Second Circuit’s opinion in Kachalsky, but doing its best to minimize the Seventh Circuit’s opinion in Moore).

Professor Volokh appears to take a dim view of the court’s deference to the legislature’s findings (especially coupled with this standard of review) and notes that “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

I agree.

I would go further, though. The various circuits, in Kachalsky, Peterson, and now in Woollard are focusing too much on Heller and McDonald‘s language regarding the “core” Second Amendment right. The right of armed self-defense may be strongest in the home, but as the Seventh Circuit noted in Moore, that does not mean that it is nonexistent elsewhere. 

I only have one other thing to say about this case–I’m very glad it came out today and not last Thursday, or I would have had to stay up all night reworking certain parts of my law review note so I could turn it in on Friday.

In the immortal words of Michael Bay*

Shit just got real.

Yes, the IMF and the EU rammed a ~10% tax on bank account assets down Cyprus’s throat as a condition of Cyprus’s bailout (I’m not even going to get into whether bailouts are a good idea or not in this post).

The IMF/EU decided to do this on Saturday, after the banks closed.**

And the 10% “tax” will be removed from bank accounts before they open on Monday.

I’m not normally one to lambast all taxation as theft, but if a bunch of foreigners I didn’t vote for and who aren’t accountable to me or my countrymen come in the night to take money out of my bank account, I don’t see how it can be called anything else.

The article is full of quotes from various non-Cypriots, before finally, in the preantepenultimate paragraph, stating “Cyprus President Nikos Anastasiades attended the talks.”***

I’m sure the DutchFinance Minister, the head of the IMF, the head of the European Central Bank, and the French Finance Minister, all of whom were involved in coming to this “agreement,” did so with heavy heart. After all, the Cypriots might fire them in the next election…

The nature of the EU and its shared currency has lead to this problem (just as it lead to the problem of Greece, etc.). Member countries must sacrifice their own best interests and that of their countrymen on the altar of the euro, and do so in vain. The European countries, their economies, and their cultures were distinct before the union. Expecting homogeneity to result from an unthinking merger into a bureaucratic state that is united only by a shared currency was folly.

The American colonists only thought they were taxed without representation in the years leading up to the Revolution–at least they were being taxed by their own government.

Cyprus is being taxed by foreigners. It’s hard to have less representation than that.

*Yes, gentle reader, I know that Michael Bay only directed Bad Boys II, and did not actually write it. But do you know who wrote it?

I thought not.

**And if you don’t think the powers that be in the EU knew about this before the close of business on Friday and transferred their money out of any accounts in Cyprus, just like how JFK didn’t sign the Cuba embargo until he had gotten 1200 Cuban cigars, I’ve got a bridge you might be interested in buying.

***The astute reader will notice that yes, the Cypriot Finance Minister was mentioned earlier than the Cypriot president, but also that despite his mention in the article, he was not quoted.

Those proposing bans on semiautomatic firearms* want to take us back to the ’80s

The 1880s.

Those of you who are good at math will note that that is closer to the 1791 ratification of the Second Amendment than to today (~90 years vs. ~130 years). Certainly far closer to the framing than TV, or the internet, but about on par with radio.

Proposing that somehow the arms protected by the Second Amendment are only those in existence at its framing and ratification is the first step down a dangerous road. If that logic applies to the Second Amendment, there’s no reason it couldn’t apply to any of the others.

Twitter? Facebook? The entire internet? TV? Movies? Video games?

Not protected under the First Amendment because at its framing and ratification you had to own a printing press and print pamphlets or stand on a soapbox and shout at passers-by to be heard.

Email? Cars? Your computer? Cloud storage?

All searchable without a warrant, probable cause, or even reasonableness, because the framers did not have any of that technology.

If you don’t like the Second Amendment, you’re welcome to try to repeal it, but consider: Would repealing the First Amendment mean that we no longer have the freedom of speech, or the press, or religion? Rights are not conferred by the government–they are, in the words of the Framers, unalienable.

Self-defense is a human right, and the best, effective means of self-defense is a firearm. A firearm puts the weak, the infirm, and the small on equal footing with their attacker.

To abrogate that right in the face of media-driven hysteria would be wrong, particularly when that hysteria is based on several false assumptions: (1) Mass shootings are not becoming more common, (2) An assault weapons ban would not have stopped the CT shooter, (3) Anything that would have prevented the CT shooting would have serious constitutional problems, and (4) America has already had a conversation about guns, and the gun control side lost.

I understand the drive to do something, but gun control proponents are focused more on doing anything, whether it would work or not, and whether it would be constitutional or not.

*Including, among others, the NY Post, which somehow fails to note (probably because of the pearl-clutching) that the AR-15 was invented in the late 1950s. The NYT notes that the AR-15 is the most popular rifle in America (and yet disingenuously posts a picture of a rifle that would be illegal under CT law, instead of one that was legal, like the shooter actually used). In Heller, the Supreme Court held that the Second Amendment protects arms in “common use.” (554 U.S. at 627) The most popular rifle in America surely falls under this “common use” umbrella.

In which I respond to aspersions cast by an internet necromancer

Nearly two years ago, I posted an overly long and verbose piece on why, despite my preference for region-free consoles and gaming, consumers don’t have the right to region-free games. This was mainly in response to Nintendo’s decision to region-lock the 3DS. Early this morning, through what I can only assume was the use of the necromantic arts, someone responded to that post. Because my response to that comment would have been far longer than a comment has any right to be, I chose to respond in a new post. Consider this a sequel to that original post.

In the two years since my original post, Nintendo launched the 3DS (region-locked), and then had to drop the price because it was too expensive and no one was buying it. I still have not bought one (the last Nintendo console I bought was the DS Lite–I haven’t bought a Wii and have no plans to buy a Wii U), though I have bought a PS3 and PS Vita in the meantime (both of which, you will notice, can at the very least play out-of-region physical games).

This, dear reader, is a little thing I like to call The Market.™

Sony has made choices with which I agree, and to support those choices, I am willing to pay for their consoles and games (and I have games for both systems from both the US and Japan).

Nintendo has continued to region-lock their consoles and games. The prices of those consoles and games have not dropped to the point where I would be willing to forego the ability to play games from all regions on one console, so I have not bought them (even though I would dearly love to play Tales of the Abyss with load times that aren’t measured in geologic time, and Project X Zone looks ridiculous enough to be awesome).

Sullivan, in his comment, says,

And Nintendo doesn’t owe you anything? You are a customer. Neither Nintendo nor their shareholders would make ANY money without the customers. They sure as hell owe you. And what you get for your money is that they patronize you and severely restrict your freedom. It is not okay. And telling people not to buy the system because of that is just stupid. It is not a solution. It was not the game developers’ choice to make games region locked.

In response, I would like to point out that Nintendo does not owe me anything.

I bought a DS Lite. Nintendo fulfilled its side of the bargain bye delivering what was promised–a region-free handheld gaming system. Since then, I have not been a Nintendo customer–I haven’t bought anything because I don’t want to pay them to restrict my gaming options. If you buy a 3DS/Wii/Wii U knowing that it’s region-locked, Nintendo still doesn’t owe you–you’re still getting exactly what you paid for.

I don’t owe support to game companies. Game companies don’t owe me good games, bad games, mediocre games, region-free games, or region-locked games. If a game company has a game I want to play, I buy it, and the relationship ends there.

Not buying the system because it’s region-locked is not only the solution, it’s the cheapest solution (it’s certainly cheaper than trying to get a big enough block of Nintendo stock to control the company’s decisions). If you’re not willing to give up the ability to play the games that come out despite the region-locking that Nintendo has foisted upon consumers, then you’ve made an economic decision that region-free gaming is not worth as much to you as it is to someone who chooses not to buy a Nintendo console because of the region-locking.

Nintendo is free to choose to region-lock their consoles and games. Sony is free to choose not to region-lock their consoles and games.

And the consumer is free to vote with his wallet and support whichever philosophy he agrees with, if he even cares. Sadly, I suspect most consumers don’t care about whether or not their consoles are region-locked.

[Ir]Rational Basis

Via Sebastian and Prof. Volokh, we learn that the Fifth Circuit held in NRA v. BATF that the federal statute forbidding FFL sales of handguns to 18-20 year olds is constitutional.*0

I’m not going to delve into the analysis here,*1 but the Court eventually decides that,

In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right.*2

The Court applies intermediate scrutiny, and ultimately holds that the prohibition on FFL sales of handguns to 18-20 year olds is constitutional (there is a “reasonable fit between the law and an important government objective”*3). Congress determined that the purchase of handguns by minors*4 is a safety problem (in that it exacerbates their impulsive, violent tendencies, or something), and that prohibiting such purposes is the best way to address that problem is to prevent FFLs from selling handguns to minors.*5 The Court lays out this determination and Congress’s narrow response to it succinctly:

Overall, the government has marshaled evidence showing that Congress was focused on a particular problem: young persons under 21, who are immature and prone to violence, easily accessing handguns, which facilitate violent crime, primarily by way of FFLs. Accordingly, Congress restricted the ability of young persons under 21 to purchase handguns from FFLs. [emphasis in original]*6

The Court defers to Congress’s determination, and upholds 18 U.S.C. § 922 (b)(1)’s prohibition on FFL sales of handguns to those under 21. The government interest is sufficiently narrow, and the means are reasonably adapted to that interest, so intermediate scrutiny is no bar.

The Court then looks at the NRA’s claim as an equal protection matter, and that claim fails under rational basis review (because, unlike race or sex, age is not a suspect classification*7).*8

However, possession/ownership of handguns by those aged 18-20 is (in most states, and under federal law) not illegal. Congress only prohibited (and only intended to prohibit) those persons from buying their handguns through FFLs. If you’re 18 and you receive a handgun as a gift, you’re fine.*9 If you’re 19 and you buy a handgun from a private person, you’re still fine.*10

Hell, you can even tell someone 21 or older to buy the handgun and then pay them for it!*11

Well, two out of three ain’t bad, I guess.*12

So it’s legal for 18-20 year olds to possess handguns, but it’s illegal for them to actually try to buy them from an FFL, or to get someone else to buy them from an FFL.

If you’re 18-20, I hope you know someone who’s generous or looking to sell a handgun they already have – if not, there’s not really any other way for you to legally acquire one.*13

Ladies and Gentlemen, I give you “irrational basis.”*14

*0 Just for the record, I’m still a law student. None of this is legal advice. If you take any of this as legal advice, then on your own head be it.

*1 For reasons I am not currently willing to go into, but will eventually explain. In mid-March/April of 2013, I think.

*2 N.R.A. v. B.A.T.F., No. 11-10959, slip op. at 18 (5th Cir. 2012).

*3 Id. at 33.

*4 The Court in N.R.A. looks at age of majority throughout common law history and determines that it has traditionally and historically began at 21.

*5 And lo, the 1968 GCA and its prohibition on FFL handgun sales to minors heralded the end of youthful violence, and an era of peace and goodwill towards all descended upon the land. Truly, we live in an enlightened age.

*6 Id. at 35.

*7 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).

*8 N.R.A. at 40.

*9  So long as you’re not a prohibited person and it’s legal in your jurisdiction, of course.

*10 Same disclaimer as before, but with an added disclaimer about the legality of private sales in your jurisdiction.

*11 DO NOT DO THIS. This is a felony straw purchase, and both you (the actual buyer) and the person you get to buy it for you (the straw buyer) will be awarded an all-expenses paid trip to federal prison. Again, DO NOT DO THIS.

*12 Now, aren’t you glad I didn’t link to a Meat Loaf song?

*13 It’s like if  18-20 year olds could possess/drink booze, but were prohibited from buying it or getting others to buy it for them. Sure, it’s technically legal, but it’s a major PITA to actually do what you’re legally entitled to do.

*14 It’s the Chewbacca defense of standards of scrutiny!

And now, from Popehat…

A year’s worth of blasphemy stories from various countries.

This ties in with what had me incensed the other day:

Saudi Arabia wants an international internet censorship body.

Now, I’m a reasonable man (generally). If I were to try to give this proposal the respect it deserves, I’d say something like, “They’re out of their damn minds if they think they can control the internet. If any Saudi-sponsored blue-helmeted goon wants me to quit blaspheming, then they can take my retorts about Mohammed’s predilection towards prepubescent girls from my cold, dead hands.”

Which statement, of course, I would normally be too polite to actually say.

Normally.

But I tend to get my hackles up when people go around suggesting we implement price controls in the marketplace of ideas.

Sigh.

The latest Ig Nobel Prizes are out, and some of them are pretty entertaining.

One, though, was just depressing:

LITERATURE PRIZE: The US Government General Accountability Office, for issuing a report about reports about reports that recommends the preparation of a report about the report about reports about reports.

It’s reports all the way down at the GAO!

The NYT: Accurate, but Misleading

The top story on the New York Times’s site this morning (though not in the print version) is on the murder of the US Ambassador to Libya by rioters. The lede on the NYT site states:

Christopher Stevens, the ambassador, was killed along with three others in an attack on the consulate in Benghazi, Libya. It was the first death of an American envoy abroad in more than two decades. [emphasis added]

On the second page, we finally learn this:

According to the State Department, five American ambassadors had been killed by terrorists before the attack on the American consulate in Benghazi. The most recent was Adolph Dubs, killed after being kidnapped in Afghanistan in 1979. The others were John Gordon Mein, in Guatemala in 1968, Cleo A. Noel, Jr., in Sudan in 1973, Rodger P. Davies, in Cyprus in 1974 and Francis E. Meloy, Jr., in Lebanon in 1976. [emphasis added]

Wikipedia says that Dubs was killed on Feb. 14, 1979. That’s more than thirty-three years ago.

While thirty-three years is indeed more than two decades, it is incredibly misleading. A cynical man might notice that by saying “more than two decades,” the NYT implies that it was less than three decades (a range that would put the last ambassador killing in either Reagan’s or Bush I’s terms, instead of in Carter’s).

But I’m sure a respectable, prestigious paper like the Times wouldn’t shade or slant the truth for a mere partisan political advantage…

Man, the New York Times opinion writers must really be desperate…

If they’re publishing this dreck.

First off, they barely get started before printing their ignorance for all to see:

[Moynihan’s] solution: Increase the tax on bullets. He wouldn’t raise the tax on ammunition typically used for target shooting or hunting. But he proposed exorbitant taxes on hollow-tipped bullets designed to penetrate armor and cause devastating damage.

Now, this might be the late, unlamented Patrick Moynihan’s* error, but considering they point out he first proposed this nonsense nearly 20 years ago, they had plenty of time to fact check him.

Had they done so, they might have learned that hollow points are the opposite of armor piercing.

Now, setting that minor factual issue aside, I want to consider the idea of an exorbitant tax on ammunition.

Apparently, the NYT thinks that such a tax would be constitutional; after all, they’re not banned outright. Sure, $1,500 for a 20-round box of ammo sounds like a lot of money, but it’s a small price to pay to get around the constitution’s protection of fundamental rights.

Presumably, the NYT would likewise approve of a similar tax on abortions; perhaps $250,000 per abortion?**

After all, abortions wouldn’t be actually banned; you could still get one, provided you forked over the tax.

Fundamental rights cannot be de facto infringed in this way; the right to arms necessarily includes the right to use those arms. And that means pricing ammunition such that no one can afford it is right out.

The opinion piece goes on to hand-wring about NYC’s sale of spent brass to a Georgia ammunition reloader, but those complaints are even more incoherent than the first half.

*I note that the NYT refers to him as “a United States senator with one of the great political brains of 20th-century America.” I wonder if the author would have been so effusive if Moynihan hadn’t been a New York Democrat.

**I’m not going to get into my thoughts on abortion here (maybe some other time); it’s enough for my point here that SCOTUS has held it to be a fundamental right.