William Howell, the Speaker of the Virginia House of Delegates, and I have an op-ed in today’s Wall Street Journal making the case for a constitutional amendment giving 2/3 of state legislatures the power to repeal any federal law or regulation. Here is the wording of the Repeal Amendment:Read the rest here. Not a bad idea, although if we hadn't passed the 17th Amendment (that implemented popular election of senators), we probably wouldn't need such a thing. Perhaps we could repeal the 17th Amendment and pass this "Repeal Amendment". Of course, we'll probably have to fight and win a civil war against the FedGov and the far Left socialist states first, because the ruling class elites won't give up their ill-gotten power without a fight. While we're wishing for the sky, we might as well add a term limits amendment.
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
As we explain:
At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.
The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.
This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.
Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.
That’s what the Kansas Supreme Court just held, interpreting Kansas Stats. § 21–3211. The statute reads,
(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.
(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.
And the court concluded that while this allows self-defense that involves an actual attack on the attacker — for instance, hitting, shooting, or stabbing the attacker — it does not allow self-defense that merely involves a threat of violence against the attacker.
I think the dissent is right to say that “force” can reasonably be read as including “constructive force” such as threats, especially in light of the substantial American legal tradition of reading force this broadly (and despite the fact that other Kansas statutes generally do say “force or threat” or some such). And this is especially so because, as the dissent points out, the result is absurd: Restraint in the use of defensive violence is rewarded by criminal punishment. I believe courts should generally read statutes as written, but the should also read their terms against the backdrop of the legal rules that help define these terms, and principles such as the rule of lenity, and the presumption against readings that produce absurd results. ...
SAMSON, Ala. (AP) -- An Army investigation found that soldiers should not have been sent to man traffic stops in a small Alabama town after 11 people were killed in March during a shooting spree.
An Army report released to The Associated Press on Monday in response to a Freedom of Information Act request said the decision to dispatch military police to Samson from nearby Fort Rucker broke the law. But an Army spokesman said no charges have been filed following the Aug. 10 report.
"As a result of the findings of the report, the Army took administrative action against at least one person," Lt. Col. Christopher Garver said.
The action was less than a transfer or discharge but Garver would not elaborate.
The report from the Department of Army Inspector General found the use of military personnel in Samson violated the Posse Comitatus Act, which prohibits federal troops from performing law enforcement actions. The names of those involved were redacted from the report. [emphasis added] ...
Have you, or a person you know, ever been falsely accused of domestic violence? Targeted with a restraining order? Put in jail?
Each year more than 1 million Americans are hit with a false or trivial accusation of partner abuse. It’s now reached the point that domestic violence laws represent the largest roll-back in Americans’ civil rights since the Jim Crow era!
Our nation’s domestic violence laws have gone too far, harming innocent citizens and diverting scarce resources away from the true victims.
Respect for civil rights is deeply embedded in our national conscience, and constitutionally guaranteed civil liberties form the foundation of our legal system. Unfortunately, these rights have been eroded in the past 15 years by an array of domestic violence laws. For years Americans accepted these civil-rights violations, assuming they were an unfortunate but necessary byproduct of the national effort to curb intimate partner abuse. But it has now become clear that the harmful effects of domestic violence laws far exceed any abuses that may occur.
As a result of our nation’s domestic violence laws, 2 million to 3 million restraining orders are issued each year, often without any allegation of physical violence. As a result, persons lose access to their children, homes and financial assets, often their jobs, frequently their friends, with devastating social and financial consequences. One million persons are arrested each year for allegations of domestic violence. But the allegations are often recanted and the evidence doubtful as evidenced by fewer than 5 percent of cases actually being prosecuted in Superior Court in Snohomish County, leaving 95 percent of the arrests unjustified. ...
"You don't need to know. You can't know." That's what Kathy Norris, a 60-year-old grandmother of eight, was told when she tried to ask court officials why, the day before, federal agents had subjected her home to a furious search.
The agents who spent half a day ransacking Mrs. Norris' longtime home in Spring, Texas, answered no questions while they emptied file cabinets, pulled books off shelves, rifled through drawers and closets, and threw the contents on the floor.
The six agents, wearing SWAT gear and carrying weapons, were with - get this- the U.S. Fish and Wildlife Service.
Kathy and George Norris lived under the specter of a covert government investigation for almost six months before the government unsealed a secret indictment and revealed why the Fish and Wildlife Service had treated their family home as if it were a training base for suspected terrorists. Orchids.
That's right. Orchids.
By March 2004, federal prosecutors were well on their way to turning 66-year-old retiree George Norris into an inmate in a federal penitentiary - based on his home-based business of cultivating, importing and selling orchids.
Mrs. Norris testified before the House Judiciary subcommittee on crime this summer. The hearing's topic: the rapid and dangerous expansion of federal criminal law, an expansion that is often unprincipled and highly partisan. ...
For wearing handcuff keys on a necklace draped around his neck, a homeless Miami Beach man could face years in prison.
Prosecutors on Tuesday formally charged Michael Gonzalez, 22, with disorderly intoxication, marijuana possession and two counts of possession of a concealed handcuff key -- a third-degree felony punishable by up to five years in prison.
``It's an actual felony,'' prosecutor Barbara Teresa Govea explained to Miami-Dade Circuit Judge John Thornton, who questioned the charge. ...
With all the attention that's been paid lately to long federal sentences for drug offenders, it's surprising that a far more troubling phenomenon has barely hit the media's radar screen. Every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law or regulation and end up serving time in federal prison.
What is especially disturbing is that it could happen to anyone at all -- and it has.
We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas), then, for holding a bipartisan hearing today to examine how federal law can make a criminal out of anyone, for even the most mundane conduct.
Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct -- such as murder, rape, robbery, and the like.
Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.
Laws like this are dangerous in the hands of social engineers and ambitious lawmakers -- not to mention overzealous prosecutors -- bent on using government's greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, "You're (Probably) a Federal Criminal." ...
Tegucigalpa, Honduras - Sometimes, the whole world prefers a lie to the truth. The White House, the United Nations, the Organization of American States, and much of the media have condemned the ouster of Honduran President Manuel Zelaya this past weekend as a coup d'état.
That is nonsense.
In fact, what happened here is nothing short of the triumph of the rule of law.
...
These are the facts: On June 26, President Zelaya issued a decree ordering all government employees to take part in the "Public Opinion Poll to convene a National Constitutional Assembly." In doing so, Zelaya triggered a constitutional provision that automatically removed him from office.
Constitutional assemblies are convened to write new constitutions. When Zelaya published that decree to initiate an "opinion poll" about the possibility of convening a national assembly, he contravened the unchangeable articles of the Constitution that deal with the prohibition of reelecting a president and of extending his term. His actions showed intent.
Our Constitution takes such intent seriously. According to Article 239: "No citizen who has already served as head of the Executive Branch can be President or Vice-President. Whoever violates this law or proposes its reform [emphasis added], as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years."
Notice that the article speaks about intent and that it also says "immediately" – as in "instant," as in "no trial required," as in "no impeachment needed."
Continuismo – the tendency of heads of state to extend their rule indefinitely – has been the lifeblood of Latin America's authoritarian tradition. The Constitution's provision of instant sanction might sound draconian, but every Latin American democrat knows how much of a threat to our fragile democracies continuismo presents. In Latin America, chiefs of state have often been above the law. The instant sanction of the supreme law has successfully prevented the possibility of a new Honduran continuismo. ...
The Supreme Judicial Court ruled today that illegal gun possession is a “passive and victimless crime’’ and those charged with having illicit firearms cannot be held without bail as dangers to society.
In a 4-to-1 ruling, the state’s highest court rejected the law enforcement strategy of Bristol County District Attorney C. Samuel Sutter to cut down on gun violence by seeking pre-trial detention for every person charged with illegal gun possession in his jurisdiction, which includes New Bedford.
Writing for the majority, Justice Francis X. Spina said a law known as 58A does not include illegal gun possession on the list of criminal charges that qualify for a dangerousness hearing. The court also rejected Sutter’s argument that a catch-all phrase included in the statute gave him the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years.
“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime,’’ Spina wrote. “It is passive and victimless.’’
Spina added, “that a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.’’ ...
Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.
While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless. It does not even require proof that a defendant knowingly failed to acquire or maintain a license, see Commonwealth v. Jackson, 369 Mass. 904, 917 (1976), and thus may occur regardless whether an individual has acquired a firearm for an illicit or lawful purpose, or simply allowed a license to lapse. Because the motive of an unlicensed possessor of a firearm is totally irrelevant to criminal liability, we discern no principled legal distinction between the risk of physical force posed by licensed and unlicensed possessors of firearms. While a licensed individual may have knowledge of the proper safety practices for using, handling, and storing firearms, the acquisition of a license does not guarantee that the licensee will abide by those safety practices or refrain from using the firearm for an unlawful purpose. Slip op. at 4.
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people? ...
JUNEAU, Alaska — On the same day they rejected an attorney general designee who is a board member of the National Rifle Association, members of the state House on Thursday approved a bill exempting guns and ammunition manufactured and kept within Alaska from federal firearms regulation.
House members voted to reject Gov. Sarah Palin's nominee to head the Department of Law, Wayne Anthony Ross, but voted 32-7 in favor of the Alaska Firearms Freedom Act, which would apply to firearms built, sold and kept in Alaska.
Critics denounced the bill as unconstitutional. They say it's a threat to Alaskans who act on the measure and face federal prosecution.
Prime sponsor Mike Kelly, R-Fairbanks, attracted 10 co-sponsors and said the bill is both a measure to allow manufacture of guns and a statement that Alaska intends to reclaim some of its rights. Alaska has seen rights eroded in the oversight of navigable waters, fish and game, and access to natural resources, Kelly said, but can reclaim rights guaranteed by the Second Amendment.
"We will handle the regulation of it," he said.
Kelly said the federal government has regulated firearms in part though the oversight of interstate commerce. The bill addresses that by exempting firearms, ammunition and firearm accessories that are manufactured and retained in the state. Guns and ammo that fit that criteria should be exempt from federal regulation, including registration, he said. ...
HELENA- Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation.
House Bill 246 was sponsored by Republican Rep. Joel Boniek of Livingston. It applies only to guns made and kept in Montana. Its supporters hope it triggers a court case to test the legal basis for federal rules governing gun sales.
The measure is one of many introduced this year by state lawmakers across the nation that seek to assert state sovereignty. ...
A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana.
"Firearms accessories" means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, and lights for target illumination.
JUDGES should interpret the Constitution according to other nations' legal "norms." Sharia law could apply to disputes in US courts. The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq.
Those are the views of the man on track to become one of the US government's top lawyers: Harold Koh.
President Obama has nominated Koh -- until last week the dean of Yale Law School -- to be the State Department's legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice. [emphasis added]...
For generations, anti-gun fanatics have been claiming that Europe has highly restrictive gun control and low murder rates. Well, the latter is true, but European gun laws are not necessarily stricter than ours (or even as restrictive). They are just different.
German and Austrian murder rates are generally the lowest in Europe--about 50 percent lower than those of gun-banning England. So let's compare German and Austrian gun laws to ours.
...
So it is true that there are many differences between the gun laws of the U.S. and those of Germany and Austria, but the latter are not more restrictive. Indeed, sometimes they are less so. To legally possess a gun may involve more red tape. But having a handgun for self-defense is no more impossible.
And getting a permit to carry is far easier than in most of our most populous states. Austria, for instance, has three times more carry licenses than California with its 4.5 times greater population.
Moreover, the U.S. has literally thousands of felonies, many of them for relatively harmless behavior--anti-trust violations, cheating on your taxes, embezzlement or growing pot, for example--and a person convicted of any of them is barred from gun ownership for life. In Austria or Germany they would not be barred at all or, in more serious matters, for no more than 10 years.
The self-defense law generally excuses a person for assaulting or killing another person if the defendant's fear of harm was reasonable, as determined by a jury, and necessary to protect himself or herself.
The "perfect" right of self-defense may be used to excuse a killing altogether if four elements are determined to have existed by the jury. Those elements are:
1. The defendant believed it necessary to kill the deceased to save himself or herself from death or great bodily harm;
2. The defendant's belief was reasonable, according to the jury, for a person of ordinary mental stability;
3. The defendant did not aggressively and willingly enter into the fight without provocation; and
4. The defendant did not use more force than was necessary under the circumstances to protect himself or herself from death or great bodily harm.
If the jury finds all four elements existed, the defendant cannot be found guilty of first- or second-degree murder.
The defendant cannot use the right of self-defense if he or she was the aggressor — he or she voluntarily entered or provoked a fight by assaulting the victim, through language or by being mutually willing to fight, or leaves the fight and then returns to restart it. ...
OMAHA, Neb. -- A unique case in an Omaha courtroom involved U.S. attorneys trying to use an unusual method to convict a man.
KETV in Omaha reported that attorneys had a conundrum on their hands -- they had the evidence to prove the convicted felon was in possession of a gun, but they couldn't prove the gun was a gun.
What attorneys had on their hands was an American double-action revolver that was manufactured between 1880 and 1941.
The problem is that federal code states that the weapon is not a firearm unless it was manufactured after 1896. Without a definitive production date, the gun was inadmissible as evidence.
At the time, the attorneys were trying to charge Lawrence Ray Cook with possession of the weapon.
Omaha police picked up Cook last September after a hit-and-run crash. U.S. attorney Joe Stecher said that Cook left the scene but he flagged down officers later to tell them he caused the crash.
"His testimony was that he swerved to miss two pedestrians and he hit another car. And as he was driving away they threw the revolver in the back of his car through the open window," Stecher said.
The attorney said that Cook couldn't explain how the revolver got into his pocket.
However, it didn't matter because attorneys couldn't prove what Cook had was a gun.
But they proved something else instead.
"Two rounds of live ammunition and an empty casing gave us the ability to prosecute for felony in possession of ammunition," Stecher said.
Anti-democratic judicial activists who place a premium on abstract notions of “human rights” at the expense of what constitutional texts actually say are spreading abroad at a time when U.S. courts have begun to re-discover “orginalism,” Supreme Court Associate Justice Antonin Scalia said in a speech Saturday.
The idea that laws have fixed meanings that transcend generations has gradually been restored to a respectable station in the academic community and in the judiciary, said Scalia during the closing session of the Federalist Society’s annual meeting in Washington D.C.
Scalia credited the 26-year-old organization for focusing attention on key principles enshrined in the U.S. constitutional system that have helped make self-government possible. The Federalist Society includes legally minded conservatives and libertarians who seek to preserve constitutional structures such as the separation of powers.
Unfortunately, the “contagion” of a “living constitution,” one where written phrases can be divorced and reshaped away from their original meaning, has begun to spread internationally, even as U.S. courts have begun to show some improvement, he said.
“There is a belief throughout the world that judges somehow are charged with protecting human rights in the abstract -- never mind the text of a particular constitutional guarantee,” he said. “When one puts on a black robe, one becomes charged with protecting human rights as though we all agree as to what human rights are. There’s enormous disagreement. And to give the responsibility of determining the meaning of that abstract phrase to unelected magistrates is, it’s anti-democratic.”
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