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The Second Amendment, as Applied

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AM-15 Machine Gun, now apparently legal to possess in Kansas

The Second Amendment as written and ratified: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment, as applied by US Federal Judge John W. Broomes of the Kansas District: “A well regulated Militia, being necessary to the security of a free State, t [T]he right of the people to keep and bear Arms, shall not be infringed.”

From the top of Broomes’ ruling on Wednesday tossing out a gun possession charge:

This matter is before the court on Defendant’s motion to dismiss based on Second Amendment grounds. (Doc. 26.) A response and a reply have been filed (Docs. 28, 29), and the court held a hearing to establish additional facts about the weapons charged. The motion is thus ripe for review. The court finds that the Second Amendment applies to the weapons charged  because they are “bearable arms” within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant. The court therefore grants the motion to dismiss.

And just what were the weapons in question that were charged?

I. Background
Defendant Tamori Morgan is charged with two counts of possessing a machinegun [sic throughout] in violation of 18 U.S.C. § 922(o). (Doc. 1.) Specifically, Defendant is charged with possessing an Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion device.  It was established at the hearing that the conversion device is a so-called “Glock switch” which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon.

Making machine guns great again. Wonderful.

Just as the Alito-authored Dobbs spawned a host of ugly laws, regulations, and ripple effects across the country, the Thomas-authored Bruen is now doing the same. Welcome to the Federalist Society Judicial System.

Elections matter, people. Elections matter a lot.

Graphic: Quino Al via Unsplash (mod by Rayne)

Grab Your Phone and Dial Now: NO on Farr [UPDATE]

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[NB: Check the byline – this is Rayne. Updates appear at the bottom of this post.]

Look, these Senate Democrats will explain why they will vote NO on Thomas Farr for federal judge better than I will:

Amy Klobuchar

Elizabeth Warren

Richard Blumenthal

Sherrod Brown

Kirsten Gillibrand

Cory Booker

Chuck Schumer says the Democrats are united and voting NO.

But here’s the thing: Shit happens. People slide when they think they have cover, when nobody’s watching.

CALL YOUR DEMOCRATIC SENATORS AND TELL THEM NO ON FARR.

You have a GOP Senator or Senators?

CALL THEM AND TELL THEM NO ON FARR because we are watching their votes closely when it comes to Trump’s policies and nominees. We are watching for senators who aren’t supportive of civil rights and voters’ rights.

These GOP Senators are particularly at risk — if they don’t retire — because they are up for reelection in 2020:

Dan Sullivan (AK)
Tom Cotton (AR)
Cory Gardner (CO)
David Perdue (GA)
Jim Risch (ID)
Joni Ernst (IA)
Pat Roberts (KS)
Mitch McConnell (KY)
Bill Cassidy (LA)
Susan Collins (ME)
Steve Daines (MT)
Ben Sasse (NE)
Thom Tillis (NC)
Jim Inhofe (OK)
Lindsay Graham (SC)
Mike Rounds (SD)
Lamar Alexander (TN)
John Cornyn (TX)
Shelley Moore Capito (WV)
Mike Enzi (WY)

MAKE THE CALLS RIGHT NOW — the Senate is supposed to invoke cloture any time now on Farr.

Congressional switchboard: (202) 224-3121

ADDER — 1:30 PM EST — In case you’re  not up to speed on Farr’s background and you don’t want to listen to the Senate Dems’ speeches linked above, here’s a backgrounder by Ari Berman at Mother Jones. In a nutshell, Farr exemplifies everything wrong with North Carolina’s politics — utterly racist and dishonest to boot.

UPDATE — 2:06 PM EST — Cloture was invoked; the vote is tight, forcing VP to cast the deciding vote. (Time stamp on tweet below is PST for some reason.)

CALL YOUR SENATORS ESPECIALLY GOP ONES. Make them own this vote when they finally confirm Farr.

_________

Treat this as an open thread.

 

Graphic: Quino Al via Unsplash (mod by Rayne)

Three Things: Take Action on Tax Bill, Net Neutrality, and a Courtroom Virgin

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There’s a lot of crappy stuff going on, but three things need your urgent attention and action: Tax cuts for wealthy, net neutrality, and an unqualified federal judicial appointment.

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So-called Tax Reform Legislation

Tax cuts for people who don’t need them and won’t even feel them, paid for by the people who can least afford them — it’s a recipe for disaster. If Putin wanted to damage our economy he couldn’t have done a better job in one go. I could rant all day about the stupidity required to believe trickle-down or supply-side economics work, but this wealthy dude does a succinct job. As he says it’s a trickle-down lie; this bill is simply a wealth transfer from the lower deciles to the upper deciles.

You can also bone up by reading this Forbes article, and this Forbes article, and hello, another Forbes article.

This is a nightmare in the making which will tank our economy and literally threaten American lives by reducing access to healthcare. The only real driver behind this bill is extortion — the GOP’s biggest donors have threatened to shut their wallets if they don’t get their tax cuts, and GOP members of Congress are too fucking weak to tell them to pound sand.

Go ahead, selfish billionaires, primary GOP incumbents. You think you can rustle up more sycophantic (and pedophilic) candidates like Roy Moore and still retain control of the House and Senate in 2018, even if you suppress the vote? Hah.

More than half this country struggles to scrape up enough cash to pay for an emergency, like a car repair or a broken appliance, and the GOP thinks increasing their taxes and undermining their health care will magically make the economy better?

And now the kicker: Alaska’s Senator Murkowski, who has been a champion for health care, just agreed to support the repeal of the individual mandate included in this tax bill. The stupid, it burns. Or perhaps it’s some ill-considered kickback burning its way through Murkowski’s cred.

Here’s a script for your use, provided by the ever-helpful @celeste_pewter. Call Congress’ switchboard at (202) 221-3121 or look for your senators’ closest in-state office and leave a message there — all senators are home this week.

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FCC Chair Ajit Pai’s Blowjob for ISPs

It’s really far more than a blowjob and it’s definitely obscene. Allowing ISPs to discriminate against bits in the pipe by throttling, blocking, or additional charges to further their agenda is absolutely unacceptable. There’s far too much at risk, beginning with the end of moderately priced internet. Some industries will be damaged — filmmakers, for example, already have problems with releasing films across the U.S. over the internet, as users do not have the same quality of network. Streaming providers like Netflix will also experience problems; angry users will blame them for poor service, when it may be the ISP throttling them. Marketplace’s Molly Wood does a pretty good job reviewing the problems with Pai’s proposed changes and the challenges with the existing regulatory framework.

Let’s be frank: your porn will be affected, too, as removing net neutrality means ISPs can audit the content you request and block/throttle/demand more to release it, or strong arm you into using their brand of porn using a combination of price differentiation and delivery constraints.

And then there’s the issue of Pai’s handling of comments on this change, which New York’s AG Eric Schneiderman has been investigating — little cooperation with Schneiderman to date and a decision made based on a manipulated feedback process — all suggest the FCC is taking illegitimate action.

So, so shady. Ajit Pai should never have been approved by this Congress as FCC chair; Congress needs to reign in his overreach by legislating net neutrality. Could the existing FCC regulations be improved? Sure, but Pai’s proposal does nothing of the sort — Congress should address this.

ACLU’s prepared a short-and-sweet script for you use. Use the ACLU’s call routing through their website, or call Congress’ switchboard at(202) 221-3121.

@Celeste_pewter offers more detailed script with a more thorough ask at this link.

Also via miracle worker @celeste_pewter, here’s a script for writing to Ajit Pai at FCC. Please personalize your message — don’t just cut-and-paste. Take a stand.

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Incredibly Wretched Judicial Nominee Talley

What. The. Fuck? I can’t even begin to explain how awful a nominee Brett Talley is; he should never have been allowed to get this far. Read up on their hideousness here. How can the Senate Judiciary Committee think for a moment that ghost-hunting,White-House-lawyer-married, ABA-‘unqualified’, courtroom-virgin Talley, is well qualified for a lifetime appointment? This is a complete rejection of the Senate’s power to advise and consent.

Call your senators at (202) 221-3121 or their home state offices and ask them to vote NO on Talley, deny their consent. We can and must do better with these lifetime appointments. Need a script? Once again, Celeste is on top of it.

In my opinion, the Senate should refuse to approve any more judiciary nominees before the 2018 election. Talley is the latest of four Trump nominees the ABA found ‘unqualified’. If somebody is drafting articles of impeachment, these nominees should be cited as an example of Trump’s failure to faithfully execute this country’s laws.

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There’s so much more that’s wrong, like the lack of funding and inadequate labor for Puerto Rico and California wildfire recovery, Puerto Rico’s Medicaid funding, another horribly qualified nominee for U.S. Census, attacks on the DREAM/DACA/SECURE Acts, or the lapse of CHIP putting the health of NINE MILLION AMERICAN CHILDREN at risk. But the three issues listed above are the ones which will have the greatest affect on the largest number of Americans.

If you have Republican legislators, your calls are even more important, though Democratic and Independent legislators do need to hear from you so they can validate their resistance. Call your elected representatives pronto — don’t take this crap without a fight. Get out in front of these turkeys.

This is an open thread. Bring your comments here which are off topic in other threads, thanks.

Obama’s Malign Neglect of Federal Judiciary Redux

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Right about this time last exactly one week ago, in relation to predictions of Ruth Bader Ginsburg’s retirement, I was describing the derelict judicial policy regarding nominations and confirmations that has characterized the White House of Barack Obama since he took office:

One of the other hallmarks of Obama’s Presidency is also, save for his two Supreme nominees Sotomayor and Kagan, dereliction of duty and attention to judicial policy and nominee confirmations. The state of rot and decay ongoing in the liberal federal judiciary is shocking, and Obama literally has abandoned the cause.

The all too predictable response to any such suggestion from the blindered Obama apologybots was “but but but Republican obstruction”. However said predictable refrain from Obamabots and party hacks belies the obvious fact that Republican obstruction has nothing to do with the lack of attention to nominations by Obama. As I said many times, here in June of 2011:

…it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice.

Friday Joan Biskupic, in her first major piece at her new perch as head legal editor for Reuters, laid out a scorching case against the feckless and derelict policy by Obama on nominations by focusing on the most important Circuit Court of Appeal, the DC Circuit:

Obama’s failure to put anyone on the 11-judge D.C. Circuit, where three vacancies now exist, reflects both rising partisanship and Obama’s early priorities.
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“That would leave the second most important court in the land without the kind of balance he might have achieved,” Gerhardt added.

Of the eight active judges on the D.C. Circuit, five are appointees of Republican presidents, three of Democratic presidents. Although the court has 11 members, it routinely hears cases in three-judge panels, assigned randomly to cases, as do other federal appeals courts throughout the country.
….
Two of the three openings on the D.C. Circuit have existed since Obama took office. Obama nominated Caitlin Halligan, a former New York state solicitor general who is now general counsel for the Manhattan District Attorney’s office, in September 2010.

The DC Circuit is the most important circuit court because it hears the appeals on all the most important cases emanating from the seat of our federal government. If it involves Executive Read more →

The Nomination Gap In The Justice System

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Hot on the heels of a pretty spirited discussion of the Obama Administration treatment of progressive nominees, both in the blog post here at Emptywheel and yesterday on Twitter, comes the reminder by Main Justice that there are no appointed, nor confirmed, US Attorneys in all of Texas:

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and Read more →

Obama’s Infirm Lump Of Coal Judicial Policy

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images5thumbnail1.thumbnail1Lost in the blizzard like white out of other concerns by the push by the Obama Administration and Congress to handwrap a huge present for the rapacious healthcare insurance industry, has been intelligent coverage of the breakdown of Barack Obama’s naive and feckless judicial policy and the emerging harm to the U.S. Federal Court system it portends.

Maybe that is starting to change.

At the end of last week, David Fontana at TNR penned an article entitled “Going Robe” noting the ever more glaring lack of accomplishment by the Obama Administration on judicial nominees. Since then, Scott Lemieux and Kevin Drum at Mother Jones have both followed up. All of these came on the heels of a startling editorial by the New York Times last month that received far too little play.

The facts and figures are stark and certain to be depressing to progressives and liberals who voted for Barack Obama and a Democratic majority with an eye to halting the rightward shift of both the Supreme Court and lower Federal court benches. Two months ago I wrote:

Three out of 23 [confirmations out of total nominations], with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.
…
Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.

What has happened since that time? Not diddly squat with the exception that Obama has finally managed to get the centrist milquetoast David Hamilton confirmed. Despite the rejoicing, this is precious little to cheer. Which brings us back to where we stand now, and Scott Lemieux nails it perfectly:

But with respect to judicial appointments, Obama’s preemptive concessions really have been counterproductive. It’s not at all surprising that his attempts to put forward moderate appointments is not working — after all, we’re dealing with conservatives willing to claim that Cass Sunstein is a wide-eyed radical. Read more →

Stare Indecisis: Obama’s Inaction On Judicial Nominations

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Michael Fletcher has an article in Friday’s Washington Post entitled “Obama Criticized as Too Cautious, Slow on Judicial Posts“.

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they considered a key priority.

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration’s reluctance to fight, arguing that Obama’s emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Well, yeah, that is about right. In fairness, and Fletcher, despite the gist of his title, does point this out in the body of his article, the GOP is acting in bad faith with the obstructionistic filibustering and holds. So, it isn’t all Obama. But there sure is a problem here.

Three out of 23, with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.

The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats — about 10 percent of the total — remain vacant in appeals and district courts.

The part of Fletcher’s article that is most distressing, however, is the description of the namby pamby attitude and philosophy Obama has on his judicial nomination policy.

Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

Obama has said he wants to appoint empathetic judges, but “beyond that, he hasn’t said much. So it is hard to know exactly what he has in mind,” Posner said.

Empathy. Hate to agree with the Republican talking points; but they are right, empathy is a bogus and impertinent concept to frame a Presidential judicial nomination policy around. Posner is absolutely right though, non-controversial empathetic centrists is about the sum total of the game plan for the Obama Administration. And he is not even making headway on that weak agenda.

Obama’s first nominee was David Hamilton, a centrist milquetoast from Indiana. Hamilton has a (despite the nitpicking claims of the GOP) bland and clean record, is Lee Hamilton’s nephew and has the ardent backing of home state GOP Senator Richard Lugar. Yet Hamilton languishes without a vote. Just like the other forgotten nominee from Indiana, Dawn Johnsen. And that is the way it is going to be with the current Republican minority; and it isn’t going to get any better after healthcare has been passed against their will.

Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.