kccraft wrote:/sigh, there goes my hopes of making another post and actually having a civil response.
My apologies that my frustration at understanding your position and motivation has shown through as incivility in my responses.
kccraft wrote:Now the point with bringing up the 14th amendment is that this whole topic has seen its fair share of anachronism. Yes, prior to McDonald, there was plenty of validity to the argument that the 2nd amendment should be applied via the 14th, but at the time it was not settled law. Thank goodness for Heller and McDonald, the process of incorporation has started, but at the time that the laws in question were passed, the legislature could not definitively say that the 14th amendment gave them power to enforce the 2nd amendment against state or city governments. Philosophically you could have made that connection, but it is the SCOTUS that has driven incorporation. That's not my choice by the way (so don't continue to assume that I am in favor of SCOTUS deciding what congress can legislate) its just how the incorporation doctrine has worked.
There are a couple of ways to look at this.
1-Under current legal doctrine, properly passed laws by congress are presumed to be constitutional until they are ruled contrary by the courts. I don't personally subscribe to this theory, but if we go with current legal theory on how incorporation works, it might be rational to go with current legal theory on congress passing laws. In other words, if congress has no power to determine that they do have 14th amendment power to pass a law, they also have no power to determine that they don't have such power, and the way to determine whether they do or not is to pass the law, and wait for the courts to rule. Under this theory, the only valid reason to vote against a bill is because one believes it is bad policy.
2-My preferred legal/constitutional theory is that each and every branch is responsible to follow the constitution. This is the theory, by the way, that would justify voting against the bill because someone believed it was unconstitutional. But to be logically consistent with this theory, anyone who claims congressional authority (absent a clearly binding SCOTUS precedence) to vote against a bill based on a belief it is unconstitutional, must also admit congressional authority to pass a bill based on belief that it is constitutional. One might still fairly object to a bill based on a belief it is bad policy, of course.
If you have any disagreement with my presentation or conclusions here, I'd love to discuss these in more detail as I suspect this may cut to the core of any constitutional disagreement. Disagreement over what may be good or bad public policy is likely to be more subjective, but I hope the constitutional questions can be resolved fully in our own minds at least.
kccraft wrote:If I dare say it one more time, my personal objection has far less to do with the "sanctity of torts" and much to do with my perception of threat to RKBA. If anything, I see a threat to honest businessmen being run out of business, but I don't even see that as a likely scenario.
I too have raised this as one of my concerns but I go a bit farther. Before exploring that, however, perhaps we should see if we agree on one simple point.
I reject the judicially created legal doctrine of "strict liability" against makers and sellers of legal products. I believe the much longer recognized theory of "remoteness" must hold blameless the makers of legal products that function properly for the purposes for which they were sold and according to advertised claims, from the illegal or even foolish misuse of those products. I do not believe it is just to even attempt to hold such a manufacturer, or seller responsible for the conduct of completely unrelated 3rd parties. Whether that is Glock for how some prohibited person who isn't even allowed to legally touch a gun uses that gun in a horrific crime, Cessna for how some private pilot chooses not to properly maintain a 40 year old plane and then fly in unsafe conditions, GM for the fact that some drunk drives under the influence or a bank robber chooses a Chevy as his getaway car, or even Louisville Slugger for the fact that someone used a bat to commit a crime makes no difference to me.
If you disagree with my fundamental objection to strict liability, please let m know.
In my view then, the only just outcome of any civil suit brought on the basis of strict liability is a foregone conclusion and that is a very rapid dismissal. Not only must the defendant not be found liable, but he must not be forced to spend resources defending against a bogus suit based on a flawed legal theory. He should, in fact, be fully compensated for his legal bills and related costs by whomever attempted to abuse the legal system by bringing such a suit.
And with that, consider that running a man out of business is like imposing capital punishment on the business. But to unjustly force him to spend money defending against a bogus suit, paying court ordered "liability", or to settle and accept bad business practices is merely a lesser form of penalty. And then I believe that RKBA and business rights are interwoven. The threat to individual businessmen occurs with the first unjust suit that imposes costs. The threat to RKBA is really the cumulative effect of unjust court cases. For one manufacturer to have higher costs or to go bankrupt is an injustice against that one business owners. When a sufficient number of businesses come to the same fate, or face high enough risk of that same fate as to alter business practices, then RKBA generally, suffers.
kccraft wrote:The firearm industry is very different than the private aircraft industry (which, by the way, would fall under the constitutional right to locomotion, which has been consistently upheld as every bit as legitimate as the enumerated rights). Drawing the connection to the General Aviation lawsuits is a valid point,
In what material ways do you see the two industries being very different?
Here is where I see material similarities. Both industries comprised a couple of different parts: a part at risk and a part probably not at risk.
For airplanes you had single engine private/recreational/trainer planes that were clearly at risk. You also had commercial, corporate, multi-engine, and other planes that were not at risk from bogus torts.
For guns, you have the sales into civilian markets that I believe were clearly at risk. You also have the sales into police and military markets that probably were not at risk.
The torts against airplane makers bankrupted those companies that had focused on the single engine market. They had no other business to fall back on. Those companies are gone. Manufacturers with income from other areas (including perhaps government subsidies or guarantees as may be common for some foreign companies) were able to drop their high liability products and stay in business (though at reduced work forces and reduced profits) with their other products.
Some gun makers sell both private and military/police guns. Some do not.
I think the similarities are very striking between the two industries as far as how strict liability would likely affect them.
One major difference, of course, is that we have far more laws and limits on importing guns than we do on importing airplanes. So while the loss of domestic airplane makers has some various bad effects, at least foreign makers might fill the void. The loss of certain domestic gun makers however might well result in the loss from the market of various types of guns or guns with certain features as such guns cannot be legally imported.
So again, I'd be thrilled to hear your reasons and logic for believing the two industries are very different for purposes of the comparisons I've drawn.
kccraft wrote:but I don't see it as conclusive evidence that the firearm industry was facing the same risk. Perhaps if such evidence was made clear to me, I'd agree that this tort reform was every bit as valid as the aviation one. But barring that, I don't see the potential benefit outweighing the potential harm.
What would you accept as "conclusive evidence"? Now, I freely admit that when it comes to threats to my RKBA, I set a much lower threshold than "conclusive evidence" before I think action is justified. I'd say "credible threat" is about I need to see before believing action is warranted.
But what evidence do you seek? How many gun makers need to be bankrupted? How much or what percentage of profits spent defending suits? How many bad settlements reached? If I know what evidence is required, I may be able to provide it.
kccraft wrote:To say that the $2 lock is the only possible drawback to this legislation is, in my opinion, a shortsighted view. As with economics, there is much in politics that is not readily apparent.
Well what other drawbacks do you see? And do you require "conclusive evidence" that those drawbacks will come to pass? Or do you set a lower standard of evidence in this case than you do for supporting congressional action to defend RKBA and private business rights? I don't ask this to attack or belittle, but merely to provoke some thought?
I saw an immediate, credible threat to RKBA and private business. The lawsuits (waged by city governments) were underway. Some gun makers had gone out of business. Others--most notably, Smith & Wesson--opted for really bad settlements rather than face bankruptcy. Here
is nice article by no less than Jeff Snyder on the S&W settlement if this wall of text from me doesn't fill your daily reading need. This might also provide some additional evidence of the risk to RKBA posed by the lawsuits.
To quote in brief:
Smith & Wesson,... entered into an agreement imposing sweeping restrictions on the design, marketing and distribution of firearms with the Department of Treasury, the Department of Housing and Urban Development, and various state and city governments. The agreement was entered into in settlement of several lawsuits and in exchange for an agreement by other state and local governments not to bring suit on similar grounds. HUD, Treasury, and various cities are now putting intense pressure on Glock and other handgun manufacturers to sign the agreement. It's bare-knuckle coercion. Upon hearing of Glock's refusal to sign the agreement, New York Attorney General Eliot Spitzer warned the company that "If you do not sign, your bankruptcy lawyers will be knocking at your door."
The S&W Settlement Agreement has dire implications for the remnant of the right to keep and bear arms.
As if to drive this point home, the S&W agreement creates, sui generis, a new regulatory body, the "Oversight Commission," to implement the agreement and conduct inspections of participating manufacturers and dealers. ...
The S&W agreement thus represents, even more fundamentally than the tobacco company settlement, a startling new method of autocratic, non-reviewable and extra-legal regulation by the executive branches of government that controls the fundamental operations of an entire industry: design and manufacturing standards, advertising, distribution and sales. The fact that it has been done to an industry that significantly affects the ability of individuals to exercise one of their fundamental rights, listed second only to the free exercise of religion, speech and assembly, should raise alarms from all civil libertarians and adherents to constitutional, representational government.
To understand the magnitude of the agreement's accomplishments, you must have some knowledge of what the agreement says and how it works within the context of existing firearms laws. Spend a little time on this, and behold the face of your government.
Within 24 months, each firearm made by S&W and any other manufacturer who joins the agreement must have "a built-in, on-board locking system, by which the firearm can only be operated with a key or combination or other mechanism unique to that gun."
The agreement requires firearms to have a barrel length of at least 3 inches, ... In addition, the height of a pistol must be at least 4 inches and the length at least 6 inches ...
Manufacturers who sign the agreement may not sell magazines that accept more than 10 rounds, and any pistol model designed after January 1, 2000 must be designed so that it cannot accept magazines made prior to September 14, 1994 (the date the federal assault weapon ban was signed into law). Dealers who want to be "authorized dealers" must agree to not sell any magazines that are capable of holding more than 10 rounds, even those that are legal because manufactured prior to September 14, 1994. In addition, in order to become an authorized dealer of S&W or any other manufacturer who becomes a party to the agreement, the dealer must agree not to sell any "semi-automatic assault weapons" as defined in the federal assault weapon ban.
Now the 1994 federal assault weapon ban sunsets in 2004. Its prohibitions cease to be effective unless the law is renewed by act of Congress. The S&W agreement, then, has just made the ban on semi-automatic assault weapons and large capacity magazines permanent
The agreement prohibits the manufacturer from selling to any but authorized dealers and distributors, and dealers or distributors may become authorized only by agreeing to adhere to numerous requirements. Some of these have the effect of further eliminating the number of federal firearms licensees who are only "casual" dealers, because they will not have the volume of business to support the new costs of doing business imposed by the agreement. The overall effect of these provisions is to consolidate the industry into a much smaller, more controllable group whose entire livelihood depends on keeping government officials happy.
In this group are the requirements that dealers carry at least $1 million of liability insurance,
dealers pledge not to transfer any firearm prior to receiving notice from NICS, the federal background check system. Current law permits dealers to complete a sale if they have not received notice within three days.
dealers agree that they will not sell or transfer firearms to individuals unless they "have demonstrated that they can safely handle and store firearms through completion of a certified firearms safety training course or by having a certified firearms safety examination." You will not be able to buy a gun unless you first prove you have taken an approved safety course.
The agreement provides that parties to the agreement "will work together to support legislative efforts to reduce firearms misuse." Further, they must also fund anti-gun public service announcements! The manufacturers who sign the agreement must contribute 1 percent of their annual firearms revenues to a trust fund that will conduct a "public service campaign to inform the public about the risk of firearms misuse, safe storage, and the need to dispose of firearms responsibly."
It was 5 years AFTER S&W signed this agreement (and Glock and other manufacturers were being pressured to do so) that Congress acted. Hardly rash action on the part of congress. Backlash from the gun community against S&W resulted in the eventual sale of the company and ending of the agreement, but not before "The success of the boycott led to a Federal Trade Commission anti-trust investigation being initiated under the Clinton administration, targeting gun dealers and gun rights groups, which was subsequently dropped in 2003".
The threats to RKBA were real. The civil lawsuit (bogus "tort") was a new tactic used by gun grabbers after their massive '94 losses in congress on the heals of the scarey looking gun ban. Gun control was no longer an issue they could win at the national level with national elections. (Gore's loss to W Bush in part because pro-RKBA union members rejected his gun control message cemented that for the time being.) So the tactics changed to using civil suits in hostile local courts to impose what could not be imposed via congress.
kccraft wrote:In Thoreau's inspired words, "That government is best which governs least." To me this means that because the gradual accumulation of governmental power slowly erodes our freedoms, there had better be a good justification for government to increase its influence. I have yet to see a good enough justification. "It's constitutional because it's constitutional" or "it is good because it is good" has not yet convinced me. And to paraphrase Divegeek, just because the legislation can, doesn't mean they should.
The logical conclusion of Thoreau's words is that anarchy is the preferred form of "government". Now I"m not accusing you of supporting anarchy. I understand that in light of the current size of government, it is almost always proper to support less government rather than more. But the key word there is "almost". I hope you will take time to read Jeff Snyder's article on the S&W settlement. I hope you don't brush away the risk by saying that nobody else would have signed it, or that boycotts worked. No doubt, S&W caved prematurely. But to have bet all hopes on the courts eventually getting it right is a bit shortsighted.
Let me also point out as I have before, that in this case it is not really a question of more or less government. It is a question of whether you want less congressional action and more local judicial action that is hostile to private business and RKBA, or do you want less local judicial action that is hostile to RKBA and private business and more congressional action that was pro-private-business and pro-RKBA.
kccraft wrote:Finally, the role of government has come up a few times, so I'd like to offer this as my parting words. I agree that the role of government is to protect the freedoms of the people. But I believe in the contract theory of our federal government. Whenever we talk about "government should do this" or "government should be that," we are really talking about state governments. The states created the federal government to assist them in filling those roles, and the federal government only was intended to have the exact authority that was given to it. In fact, we have an amendment (number 10) to ensure just that. In other words, saying "the government needs to do this, therefore the federal government needs to do this" is a stretch. First it must be demonstrated that a more local government cannot facilitate such, then that the federal government has been empowered to do it.
I agree with these sentiments.
I will add that one of the delegated powers of congress is to protect individual rights from local infringement. Congress waited a long time before stepping in to act. They waited way too long in the case of airplanes. They moved a little slower than I think appropriate on the guns.
But also bear in mind, that the outcome on congressional races are never for sure. Even if you believe congress should have a waited a bit longer to act on gun lawsuits, you have to ask yourself if you really want to risk waiting to act until you may no longer have the majorities needed to do so. For sake of argument let's assume that the perfect time for congress to act on gun suits so as to not offend any principles was March 2008. Or even March 2006. Look at the makeup of congress. How many months after they passed the lawsuit protection law, did the pro-RKBA forces continue to have the makeup of members such that they could pass it? Have pro-RKBA forces held a majority of congress (much less the super majority needed to over-ride an Obama veto) since Heller in 2008? Or since McDonald in 2010? Do you think a single gun grabber in DC, from the oval office down to the most junior congressman has actually changed his world view, or reduced his hate of guns as a result of Heller or McDonald?
I don't mean to be offensive or incivil. And I'm sorry to be verbose. I know it is a lot to even consider reading.
But when I hear someone say that the suits didn't really pose a threat to RKBA or the gun industry, I am left completely astounded. Those who were following RKBA related politics in the 90s (and you had to follow them carefully because the mainstream media wasn't reporting much and various alternative media including the internet were still fairly rare, we're talking AOL days here) and early 2000s, really do understand the danger we were facing.
I hope I've at least provided enough information for you to really research the history and facts and to give this some real thought.
I'm for limited government. But I also believe government is instituted to protect rights, not to provide a court system through which rights can be unjustly infringed under color of law.