Marc Randazza reacts to the Las Vegas shooting in his most recent CNN column

 

In his latest CNN opinion column, Vegas based attorney Marc Randazza reacted to the brutal mass shooting that happened in Las Vegas on October 2, 2017. Fortunately, neither Marc Randazza, nor his family members or friends, were harmed during that tragic incident.

However, as a First Amendment attorney and the managing partner of the Randazza Legal Group — a law firm that handles cases related to Constitutional law — Randazza could not remain indifferent.

While expressing his deep sympathy and condolences to the victims and the survivors, Marc Randazza emphasized that it’s fairly important not to let terrorists plunge the nation into chaos and fear. As Mr. Randazza noted, “Let us remember that those who kill innocent victims do not do so simply because they wish them dead — terrorism is about killing a few to strike fear into many.”

Oppressing people’s freedoms and restricting the rights of regular people isn’t the best way to react to mass shootings. Marc Randazza believes that we should “Do nothing but mourn, care and investigate. Yes, at some point this event will inform decisions on how we govern ourselves. But not today.”

Find out more about Marc Randazza’s response to the Las Vegas shooting in his most recent CNN column: “The best way to respond to Las Vegas massacre.”

A loss, is a tie, is a win.

The Connecticut Bar Association voted on whether to sign onto a brief in support of a firearms law. The House of Delegates voted yes, 2-1, but there was a referendum petition. A vote was taken. By a vote of 734-729 (5 votes), the members voted to join the brief. Those opposed to signing the brief technically lost. Yet, the CBA President called it a tie, in light of the close vote. The practical result: the CBA will not sign the brief and the opposition effectively wins.

There’s a logic to it, but it is a curious thing.

https://ctbar.site-ym.com/news/187606/Shew-v.-Malloy-Referendum-Results.htm

Proving Yourself Wrong About Things You Think You’re Right About

By Christopher Duston

This is a story about hypothesis and fact-checking on the gun-violence debate. And about how proving you are wrong about something is better the thinking you are right.

I was listening to an interview on NPR with Jack Levin, a sociologist and criminologist from Northwestern Northeastern University in Boston. He commented that there are not very many similarities between the shooters in these mass killings, making it hard for policy-makers to target the problem. However, he said most of them had some kind of “history of depression.” I did not verify the accuracy of that statement, but that suddenly made sense to me – it is at least believable that citizens in a 21st century United States face new social, economic, and technological challenges that could increase the rate of depression.

The details of this depression-link (if it even exists) would be very complicated, but if we claim that it is because of some kind of major change in our society, we should look for an indicator that detects such large scale phenomena. In other words, it can’t just be the growing income gap that is causing us to unleash outlandish violence against each other.

So we need something that will measure the “total health of a society”; such things exist, for instance the Legatum Prosperity Index (LPI), which takes into account various factors such as economy, healthcare, and personal freedom. This seems like something that would track what I’m interested in, since the basic claim is that there are a number of different factors, which together contribute to an increase in gun violence.

And, the great thing about the LPI is that Wikipedia lists the top 30 (and bottom 20) countries for the years 2012-2008. You don’t need a degree in criminology or a class in statistics to look at numbers.

We want to compare to gun violence rates; again, Wikipedia helps! You can get the firearm-related death rate (per 100,000 population). You can even sort it. (Although, this is ALL firearm-related deaths; I am not isolating mass shootings. In this case, Wikipedia’s entries are so detailed that broad categorization is hard).

So, with the most basic data analysis software you can imagine (Google Docs), I made a spreadsheet of the LPI rank of each country and their firearm-related death rate. I was already writing my segment as a guest on Rachael Maddow…but then I made the plot. Well I was wrong. As you can see, there is zero correlation between the LPI rank and firearm-related deaths.

But this doesn’t mean we didn’t learn anything. The LPI is not a discriminating enough tool; my interpretation is therefore that gun violence is not connected to “quality of life,” broadly defined. Of course, there are all kinds of other possibilities, but this is a simple analysis, and so I restrict myself to simple (and imprecise) statements.

I’m not saying there is a complete lack of analyses out there about the violent nature of the United States – I won’t do a literature search, but good people certainly work on the problem. However, with the democratization of data, we need to acknowledge that no one should be allowed to get away with statements that are not backed up by at least a minimum of quantitative analysis. This analysis took me about 35 minutes. I just came up with something I thought was brilliant, hopped over to Wikipedia to mine some data, plotted it using a FREE online service, and proved myself wrong. Study over.

Police yourself!

PS: One guess as to which blue dot is the U.S. Yup, it’s that one. Yeah, we have less gun violence per capita than the likes of Mexico (LPI rank 61), Brazil (44), and Colombia (69), but that is not the group we should be in.

Christopher Duston is a graduate student in the physics department at Florida State University. His research focuses on mathematical physics and quantum gravity, and he will receive his Ph.D. in May 2013.

Most Extreme “Terrorist Threat” Story?

by Charles Platt

Of course this is only one side of the story. But since it emanates from a law firm, I hope it is at least factually sound. I sure hope Murtha&Murtha are around to defend me when it’s my turn.

WTF NJ?

The NRA reports that a guy just got 8 years in prison for having guns in locked cases, which he was transporting from one house to another, while moving. New Jersey’s restrictive gun laws provide an exception for just this situation, but the NRA claims that the judge refused to tell the jury that. (source)

Update: Reason has a more fleshed out discussion of the case here.

First Amendment meets Second Amendment

The sheriff of Osceola County, Iowa denied a concealed weapons permit to Paul Dorr because he engaged in too much protesting, passing out leaflets, and writing letters to the editor. (source)

U.S. District Court Judge Mark W. Bennett wasn’t having any of that.

Sheriff Weber’s rationale for denying the permit was reported as “concern from public. Don’t trust him.” (source). This was despite the fact that Dorr held a permit for a number of years, apparently without incident. Sheriff Weber informed Dorr that he would deny future applications as well.

Weber testified that he had heard people refer to Paul as “a whacko, delusional, a nut job, a spook, and narcissist,” Bennett’s decision noted. “Regardless of the adjective used to describe Paul, however, Sheriff Weber stated that Paul’s ‘lousy’ reputation was due to his political activities of writing letters to the editor and distributing fliers.”

The ruling continued, “Giving Sheriff Weber more deference than is due his elected status, the court finds that Sheriff Weber denied Paul’s application for a concealed weapons permit not because of the content of his First Amendment activity but because it was effective and agitated many members of the local community.”

And, Bennett said, “In denying Paul a concealed weapons permit, Sheriff Weber single-handedly hijacked the First Amendment and nullified its freedoms and protections. Ironically, Sheriff Weber, sworn to uphold the Constitution, in fact retaliated against a citizen of his county who used this important freedom of speech and association precisely in the manner envisioned by the founding members of our nation … (source)

In finding for Dorr, Judge Bennett also ordered Sheriff Weber to attend a remedial course on Constitutional law!

Let’s hear it for Judge Bennett!

Individual Rights? Forget Heller

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

As first reported here and here, the Second Amendment does not act (currently) as a restriction on the states’ power to regulate the right to keep and bear arms. The Heller decision simply laid the foundation for the eventual incorporation of the Second Amendment via the Fourteenth Amendment. Thus, unless you live in D.C. or are currently under Federal jurisdiction, Heller is not a shield from government intrusion.

A current illustration of the lack of protection comes from the United States Court of Appeals for the Eighth Circuit. See FN 2. The case demonstrates that while the right to keep and bear arms is an individual right, it is not a restraint on the individual states. For an analysis on the available constitutional restrictions please see post. However, this post will exclusively concern the incorporation doctrine as it applies, or should apply to the Second Amendment.

Heller in Wisconsin

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

Recently, the Eastern District of Wisconsin denied a felon’s motion to withdraw his guilty plea. Kenneth Robinson plead guilty to possession of a firearm as a felon. See Case. The motion stated that in light of District of Columbia v. Heller 128 S. Ct. 2783 (2008), the federal regulation of firearm possession by felons, 18 U.S.C. Sec. 922(g)(1), is unconstitutional as applied. The statute states, “it shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce any firearm or ammunition.”

The defendant, Mr. Robinson, argues that he can withdraw his guilty plea because his crime is no longer a crime. Mr. Robinson is incorrect. The statute remains valid on its face and as applied to Mr. Robinson.

Heller is parsimonious in application. The decision invalidated an absolute ban on handgun possession. The Supreme Court was careful to allow for reasonable regulation of the “new” individual right to keep and bear arms. Thus, the federal government lost the power to ban handgun possession but retained the power to regulate possession. The Eastern District of Wisconsin does a good job explaining the flaws in Mr. Robinson’s argument based on Heller. However, Mr. Robinson would be incorrect prior to Heller.

Even prior to Heller, Courts traditionally subjected laws regulating the right to keep and bear arms to a “reasonable regulation” standard of review. See Parker, 478 F.3d 370, 399 (D.C. Cir. 2007). Under this standard, courts should invalidate a gun law if it is arbitrary or so restrictive that it “eviscerates,” renders “nugatory,” or results in the effective “destruction of the right to bear arms.” See, e.g., State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

Such courts, applying a reasonableness standard, all recognized, “[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms.” State v. McAdams, 714 P.2d 1236, 1237 (Wyo.1986). Under this standard, courts traditionally upheld gun control laws in limited situations banning only: 1) a limited class of persons from possessing firearms i.e. felons and intoxicated persons; 2) particular types of firearms; 3) the carrying of concealed firearms outside of one’s home or office; and 4) the transportation of loaded firearms. See, e.g., Johnson, 497 F.2d at 550 (upholding a statute restricting felon access to firearms). As Parker explained, states may impose such “time, place, and manner restrictions” on the right to keep and bear arms because they are “presumably reasonable.” 478 F.3d at 399. The restrictions on the Second Amendment right are parallel to those imposed on First Amendment rights. See What Does D.C. v. Heller mean for *First* Amendment Rights.

It appears that Mr. Robinson has little recourse based on court precedent pre and post Heller. While the Supreme Court ruled that the right to keep and bear arms is an individual right, it did not deem the right absolute. Certain restrictions are allowed including those levied on Mr. Robinson.

The Nevada ACLU: One chapter gets it, 49 to go.

Popehat.com reports:

The ACLU has long refused to acknowledge an individual right to bear arms, insisting on a narrow, collective-militia-rights interpretation of the Second Amendment. That’s unprincipled. It’s not unprincipled because the collective rights interpretation is self-evidently stupid or dishonest; that interpretation is a perfectly arguable, though wrong. The ACLU’s position is unprincipled because it bills itself as a defender of individual rights and has consistently taken the most pro-individual-right position possible in interpreting the rest of the Bill of Rights. Their flat declaration that ‘in our view, neither the possession of guns nor the regulation of guns raises a civil liberties issue’ is inconsistent and unconvincing.

I agree with Popehat on this one (and I bet that my occasional guest blawger and former superstar student Jon Blevins will post a concurring comment in less than 45 seconds).

I’m a member of both the ACLU and the NRA — which means that I am not welcome in either group. As much as I dislike the NRA’s stance on everything except the Second Amendment, and as much as I wish that the ACLU would drop its Affirmative Action cheerleading (leave it to other groups), I love the Constitution. If it takes two membership fees per year to protect the entire Bill of Rights, so be it.

However, if I lived in Nevada, I wouldn’t need to waste my money supporting the Charlton Heston branch of Scientology. The Silver State’s ACLU gets that Civil Liberties equals the whole Bill of Rights, not just the parts that hippies like.

In light of the United States Supreme Court’s decision concerning the D.C. handgun ban (District of Columbia v. Heller) the ACLU of Nevada considers it important to clearly state its position regarding the right to bear arms. The Nevada ACLU respects the individual’s right to bear arms subject to constitutionally permissible regulations. The ACLU of Nevada will defend this right as it defends other constitutional rights. This policy was formulated by our afilliate Board in light of both the U.S. Constitution and the clearly-stated individual right to bear arms as set out in the Nevada Constitution’s Declaration of Rights.

Unless you live in Nevada, I don’t understand how you can support the ACLU and not the NRA (and vice versa). I think that the two groups should merge. Think about it. We could drive all the religious nuts out of the NRA, and for fun, we could hunt and eat the hippies! Yaay!

By the way, welcome to the blogroll, Popehat!

What does D.C. v. Heller mean for *First* Amendment Rights?

I’m not a Second Amendment buff. I follow Second Amendment cases like I followed basketball this year. I really didn’t perk up until the playoffs. That’s why I have asked Jonathon Blevins to guest blawg on the Heller case.

But, I follow First Amendment issues like I follow football. From the draft, to the pre-season to the final second in the Super Bowl, I’m glued to it. Accordingly, when an opinion of great Constitutional importance comes out, even if it is not a First Amendment case, I like to sniff around the case for dicta that might be used to flesh out the writer’s First Amendment beliefs. There is some good and some bad in this opinion.

Good – The First Amendment is an individual right

This seems like a “no duh” statement, but not everyone knows this.

I have had far too many conversations with students and with other law professors who have a misguided belief that the First Amendment can be analyzed from a collective right perspective. The argument being, since the marketplace still has plenty of erotica available, there is no Constitutional problem created by over-zealous suppression of adult entertainment. Essentially, from commenters to this blawg to some very respectable law professors, there is a growing (and misinformed) school of thought that the First Amendment might be a “collective right.”

In Heller, at page 5, the conservative majority confirms that the First Amendment is unambiguously a personal right, not a collective right. When even Scalia sides with me on a First Amendment issue, that makes me feel better.

Good – The First Amendment extends to new forms of communication

Some originalists claim that the First Amendment only protects communication that the founding fathers contemplated in 1789. This foolishness isn’t limited to pre-law students and laypeople. I have had an argument (out of court) with a member of one of Florida’s courts of appeal about this. His position was that since the founders were not thinking about adult entertainment when they wrote the First Amendment, they didn’t intend to protect it. One logical come-back to this is that the founders didn’t need strip clubs, they could just buy slaves and make them do whatever they liked. Who needs a stripper when you can just buy Sally Hemmings?

Scalia dispenses with this perspective at page 8.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Bad – The purpose of speech can impact its Constitutional protection

At page 22, Scalia introduces me to a new Constitutional principle – that the purpose of speech can render it unprotected.

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

I hope that this was just careless language on Scalia’s part. It is true that we can’t speak in a defamatory, obscene, or threatening manner. However, I don’t agree that the speaker’s purpose in speaking can change protected speech to un-protectable.

Neutral – Just because the court doesn’t address something for a long time does not mean that it is settled law.

This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). See page 54.

Good (perhaps) – Scalia recognizes that our rights are at least as broad as they were believed to be at the time of the drafting of the Constitution.

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views.

This can cut both ways. It seems to me that this passage means that free speech means free speech, and if it might be desirable to some, or even all, to limit today’s notions of free speech, the Constitution tolerates no such balancing test.

This passage also says that constitutional rights are “enshrined with the scope they were understood to have when the people adopted them.” To me, that means that the “scope” of the rights is the breadth of the conduct or speech they protected. However, some might argue that this means that types of speech that the founders didn’t think about, namely adult entertainment, might not fit. However, Scalia’s dicta on page 8 (above) seems to contradict that possible interpretation.

The other possible perversion of this passage is that courts might substitute the word “narrow” for the word “broad,” above. I believe that civil liberties are a one-way street. The courts can always rule that the Constitutional protections in the Bill of Rights expand as times pass, but not the other way around. Scalia seems to recognize this one-way street in this passage, but perhaps he merely felt no need to add a footnote or parenthetical with the word “narrow”.

Bad – Breyer’s Dissent and local government power

In page 23 of his dissent, Breyer relies upon some of the language in adult entertainment cases to support his deference to local government knowing “what is best” in terms of local regulation – the First Amendment be damned.

In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems”)

Conclusion

This is one of the most uncivil opinions rendered in recent years. Not since Scalia’s dissent in Lawrence v. Texas do we find such mud-slinging.

But, if we dig through the dirt to play “dicta forensics,” it would seem as if the wings of the Court have traded sides with respect to the First Amendment. I would like to believe that they wouldn’t be so crass and results oriented that these positions will revert when the issue before these same justices has to do with free speech and adult entertainment.

A man can dream…

Jonathon Blevins on the Second Amendment

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

I have my own opinions on the Second Amendment that can be boiled down to this: The Second Amendment says what it says. While I will agree that it might not be socially desirable to have unfettered gun ownership in a nation of idiots, I can not pick and choose which rights guaranteed by the Constitution I may find socially desirable.

Mr. Blevins is the Chief Justice of the Moot Court Honors Board at Barry University School of Law. He has done a lot of research on this issue lately, and asked me why I hadn’t blogged on it.

Which got me thinking… why should I when I can just ask him to. What follows is his essay, which I am proud to present here at the Legal Satyricon.