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California Proposition Poll

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SurveyUSA has this poll on California's ballot propositions, among other things.

"Proposition 62, which would end the death penalty in CA and replace it with life in prison, trails by 15 points today and is headed for defeat." If that sounds familiar, it's nearly identical to what the same poll found about two weeks ago, noted in this post.

"Proposition 63, which outlaws large-capacity magazines and requires background checks on ammo purchases, leads by more than 2:1 and will pass." 

"Proposition 64, which would legalize, regulate and tax recreational marijuana, is supported 52% to 41%. Caution advised."

And Proposition 66, which would streamline the death penalty and allow us to restart executions?  They didn't poll on it.  Again.

The pollsters note:

Polling ballot measures and citizen initiatives is an inexact science. In general, having nothing to do with California specifically and having nothing to do with 2016 uniquely, opposition to a ballot measure increases as Election Day approaches. Rarely does support for a ballot measure increase over time. It is likely that opposition to Propositions 56, 62, 63 and 64 will increase once early voting begins on 10/10/16. This may alter the calculus on recreational marijuana Proposition 64, which today has the most fragile advantage of those measures tested.
Answer:  When Barack Obama is handing out clemency to drug felons.  If they were packin' heat on the street corner, well, look, boys will be boys.  

The important thing is to shimmy down the prison population.  If the federal recidivism rate is half (49.3%, exactly), and crime across America is skyrocketing, please, get over it.  We need to "rebuild our communities"  --  with drug pushers.

Heather MacDonald lays it out in her telling piece in the National Review.

President Barack Obama commuted the sentences of 214 federal prisoners yesterday, part of his ongoing crusade against a criminal-justice system he regularly declares racist and draconian. The White House trumpeted the fact that this was the largest one-day grant of clemency since 1900....

Many of the commuttees possessed stolen firearms or firearms with their serial numbers obliterated. Some were in violation of National Firearms Registration, which can mean possession of a federally prohibited weapon, such as a machine gun, silencer, or sawed-off shotgun. We don't know how many guns the offenders actually had; a commuttee during a previous batch of commutations had 40. 

Nor does the Justice Department's press release disclose the actual incidence of firearm possession by these federal convicts. Gun possession can be used to increase a federal sentence under the federal sentencing guidelines without a prosecutor's actually bringing a formal charge. A gun charge can also be plea-bargained away. Many advocates of criminal-justice reform believe in maximum gun control, yet White House press releases on the president's commutations have been silent on the widespread incidence of illegal gun possession.

Probably not.

A liberal precinct in a liberal paper (Wonkblog in the Washington Post), reports some scholarly research:

Lawful gun owners commit less than a fifth of all gun crimes, according to a novel analysis released this week by the University of Pittsburgh.

In the study, led by epidemiologist Anthony Fabio of Pittsburgh's Graduate School of Public Health, researchers partnered with the Pittsburgh Bureau of Police to trace the origins of all 893 firearms that police recovered from crime scenes in the year 2008.

They found that in approximately 8 out of 10 cases, the perpetrator was not a lawful gun owner but rather in illegal possession of a weapon that belonged to someone else.

The main problem is not the gun, any more than the main problem is the truck in Nice or the knife in Japan or the pressure cooker at the Boston Marathon.  The problem is the fellow using it.

"We flood communities with so many guns that it is easier for a teenager to buy a Glock than get his hands on a computer or even a book."
-President Obama, remarks at memorial service in Dallas, July 12, 2016

WaPo fact checker Michelle Ye Hee Lee has this article with the above headline, concluding with an award of Three Pinocchios (mostly false).

Defining "Carrying" A Firearm

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Is a loaded revolver "on his person" if it is carried inside of a backpack that is being worn by a man fleeing from the police? In California, the answer is yes.

On Monday, the California Supreme Court held in People v. Wade (S224599), that the defendant in that fact scenario was guilty of carrying a loaded firearm pursuant to Penal Code section 25850, subdivision (a). The Court got this one right. A loaded revolver tucked into a waistband, a loaded pistol inside of a briefcase, and a loaded firearm packed inside of a suitcase at the airport are all "on his person" and are all an equal threat to public safety.

In so holding,the Court said: "we believe the statute should be fairly applied consistent with the Legislature's concern with the threat to public safety from those with control over and ready access to loaded guns in public. We agree with the Court of Appeal in this case 'that defendant's immediate access to the revolver within the backpack he wore created the type of clear threat to the general public . . . that is prohibited by section 25850, subdivision (a).' "
WaPo fact checker Michelle Ye Hee Lee had this article Thursday on President Obama's various statements after mass shootings, which are not fully consistent with each other or with the facts.  The article also has a cautionary nugget about what "experts say" and what "studies show."

Mr. Obama gets the maximum Four Pinocchios (reserved for "whoppers") for his December 1 statement in Paris, "I say this every time we've got one of these mass shootings: This just doesn't happen in other countries."  Wow.

The President's other, more nuanced statements about the relative frequency of such incidents get the milder Two Pinocchio rating ("significant omissions and/or exaggerations").  To check the facts, Ms. Lee consults experts Adam Lankford and John Lott and gets very different answers.

Astute readers might notice how Lankford and Lott both compared the United States to grouped European countries, but their conclusions are vastly different. Lott says the rate is about the same, while Lankford says the rate is five times higher in the United States. How is this possible? The researchers are looking at different sets of years and different sets of countries. (Lott looked at Europe as a whole; Lankford at the European Union.) Lott uses a broader measure of mass shootings than Lankford does. Lankford looks at the number of shooters; Lott uses fatalities and shooting incidents. This is an example of how the data and definition can be adjusted to show different findings about mass shootings, even using a per capita rate.
Lots and lots of choices have to be made in setting up a study, many seemingly benign in themselves.  If a person wants to reach a particular result, it is easy as pie to run the numbers 16 different ways, pick the way that best supports your agenda, and throw the others in the trash.

This is why the viewpoint one-sidedness of American academia and the well-funded nonprofits is so very dangerous.  The truth comes out much more clearly when there are people on both sides doing these kinds of studies, but academic conservatives are an endangered species, and those who do "come out" are targeted by neo-McCarthyists determined to achieve ideological purity.

Be very, very skeptical about what "studies show" and "experts say."  

The San Bernardino Massacre

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I have held off commenting on the San Bernardino massacre until more was known.  Today's WSJ has a number of articles on the emerging picture and the policy dilemmas we faced as we decide what to do to reduce the risk of such horrors.
One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?
Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.

Schizophrenia on Gun Control

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In the wake of the Oregon mass shooting, President Obama proposed new restrictions on firearms that presumptively law-abiding people want to buy.  This has been his reaction before, as the Washington Post notes. At the same time, he is, by his support for the SRCA of 2014 (the Senate's sentencing reform bill), proposing to be more lenient on gun violence when undertaken by felons (typically but not always drug dealers). Specifically, the President and other SRCA backers want dramatically to scale back the penalties of 18 USC 924(c), which at present mandates harsh punishment for carrying or using a gun in the commission of a federal felony,

Question:  Why, when the President, unfortunately with good reason, views "gun violence" as one of the nation's most serious problems, does he want to take it easier on convicted criminals who carry and/or use guns while at "work"?

The 924(c) penalties are indeed harsh, and they are mandatory. This is for a reason. The mix of guns and drugs is probably the most lethal combination known to law enforcement. The shocking murder spike of the mid-1980's, coinciding with the crack wars, knocked us out of our stupor.  Partly because, over the last 25 years, we have taken gun-totting traffickers off the street for a very long time, we have  --  guess what!  --  much safer streets. There are now 10,000 fewer murders per year in this country than there were when 924(c) punishments kicked in full time.

And what does this means to our Most Avid Gun Control President?  Time to retreat to the softer sentencing of our more gun-violent past. 

Yikes.  I guess liberals were for gun control before they were against it.
Folks opposed to laws that highly restrict or even ban firearm possession by law-abiding citizens often point to the potential of an armed citizen preventing a crime of violence.  The other side says that is very rare.

It does happen, though, and Eugene Volokh at the Volokh Conspiracy has a fine example.  The subsequent criminal case also points out a controversial aspect of the felony murder rule.

As the story begins, it is eerily similar to the Wichita Massacre case argued in the U.S. Supreme Court last week.
The academic debate on whether increased ownership of guns by law-abiding citizens reduces crime continues.  John Lott has been the leading advocate for the "yes" side of that debate.  He has a new paper on SSRN, with John Whitley and Rebehak Riley, titled Concealed Carry Permit Holders Across the United States.  The abstract follows the break.
Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

California Gun Control Case

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Today the U.S. Court of Appeals for the Ninth Circuit hears argument en banc in a controversial gun control case.  The summary to the three-judge panel opinion describes the case:

The panel reversed the district court's summary judgment and held that a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.

Plaintiffs challenged a County of San Diego policy which interpreted California's restriction on carrying handguns in public. California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations, absent the showing of, among other things, good cause. Under San Diego's policy, concern for one's personal safety alone is not considered good cause.
Ashby Jones has this article in the WSJ.  The court has this case page.  The oral argument is here.
Jessica Gresko and Ben Nuckols report for AP:

People in the nation's capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia's police chief said Tuesday that she's dropping this requirement, a centerpiece of the city's handgun-control legislation, after a federal judge issued a preliminary injunction against it.

How about being in a jurisdiction where the murder rate is many times higher than the national average and among the highest of all American cities?  Doesn't everyone in the District have a "good reason"?

SCOTUS Tuesday

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Only one decision from the U.S. Supreme Court today.  It is an "original jurisdiction" case, states suing each other over river water:  Kansas v. Nebraska.  Still waiting on Elonis v. United States.

Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.

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