Thursday, May 22, 2003

Eugene Volokh, Closet Gun Control Supporter?

I've blogged a lot about gun control in the recent past, and have also blogged about the bias of L.A.'s premire legal newspaper, the Los Angeles Daily Urinal Journal [whose articles frequently overlap with those of its sister publication, the San Francisco Daily Journal], in the more distant past. This entry combines the two themes; the only thing missing was for Jennifer Reisch and/or her attorney, The Insufferable Laura Stevens, to get involved in the debate. The article at issue ran in the May 9, 2003 edition of the Daily Journal, and concerned the case of Maxfield v. Bryco Arms, a politically motivated anti-gun lawsuit brought on behalf of Brandon Maxfield, a paraplegic teenager, against Bryco Arms, a Costa Mesa firearms manufacturer.

Like most of the other tort lawsuits brought against firearms manufacturers, Maxfield concerned not a genuine manufacturing defect, but a creative theory alleging a design defect based on but-for reasoning: if the gun had had a chamber indicator and been designed to allow a person to unload it without disengaging the safety, the idiot babysitter charged with caring for Maxfield, William Moreford, might not have shot Maxfield. Unlike the lion's share of these cases, however, Maxfield actually prevailed, and got hit with a $51 million verdict.

Now we get to the part where the Daily Journal utterly blows it: quoting Eugene Volokh. Here is everthing the Daily Journal had to say about Professor Volokh (the middle paragraph does not relate to Prof. Volokh but has been left in to avoid the appearance of my having yanked anything out of context):

    Professor Eugene Volokh, who teaches a firearms regulation seminar at the UCLA School of Law, said [H.R. 1036] would allow general product liabiltiy claims but could disallow a case with the specifics of Maxwell because the shooter could have been charged with criminal negligence.

    No industry has ever tried to get such sweeping immunity," said [attorney Daniel] Vice, whose organization [the Brady Center to Prevent Handgun Violence, f/k/a Coalition to Prevent Handgun Violence f/k/a National Coalition to Ban Handguns] opposes the legislation.

    The bill as written provides several exceptions and would expressly allow state and federal firearms regulations to take precedence, Volokh said. He generally supports statutory, rather than judicial, firearms control, he added. "The law is jsut clearer and fairer."

    [Emphasis added.]

Suppose you knew nothing about Professor Volokh's extensive research on gun control. Going on nothing except what you just read from the Daily Journal, what would you assume about his general views on gun control?

Wednesday, May 21, 2003

Der Spiegel

 It seems that Der Spiegel, a German weekly news magazine patterned after Time Magazine, may be going the way of the New York Times. As bad as the Digital Millennium Copyright Act and the various stupor-DMCA state bills may be, none of them are anywhere near as bad as this article makes them out to be. Parts of the article are interesting indeed, while the not-so-useful portions are so over the top as to be self-fisking. Thus, I'll keep my comments to a minimum.

    Television Viewing Prohibited
    By Michael Voregger

    A growing number of U.S. states is demonstrating what the world may look like if lobbyists for industry get their agendas through the legislatures. There, anyone who watches T.V., makes a telephone call or uses email without a permit can be fined.

    In Colorado, anyone who turns on his television set can be fined, unless he has a license from the state. This state in the American heartland is one of six that have passed laws restricting the use of television sets, computers, telephones and other communications devices.

Brilliant analysis, apart from two minor details. First, the bill in question, H.B. 1303, does not require license to use a telephone, a computer or a TV set. Second, H.B. 1303 doesn't require anything at all, as Governor Owens vetoed it today. Other than that, the analysis is right on.

    Before operating any of these devices, each citizen must obtain permission from a regional "Communication Service Provider," if he does not want to be in violatin of the law. Even answering machines, fax machines and cellular phones fall under this regulation. Anyone who fails to register is a potential violator.

    Behind this development is the Motion Picture Association of America, which represents every film company from Warner Bros. to Metro-Goldwyn-Mayer.

    Lobbyists see this legislation as a minor change to existing rules intended to combat Internet pirates and people who steal cable or satellite service. Since 2001, representatives of the studios have been working to strengthen state laws around the country. With this goal in mind, the MPAA has developed a bill to submit to every legislature.

    While the details of thse laws vary from state to state, their basic effect is always in line with the recommendations of the MPAA. The legislation is intended to prohibit the production, possession and use of any communications devices that allow the theft of services and television signals.

    The Electronic Frontier Foundation sees these laws as redundant and unnecessary. According to these virtual civil libertarians, the public interest is being sacrificed to the self-serving demands of the mass media.
    Consumers as Suspects

    "These measures are special interest legislation, which endanger use, innovation, free expression and competition," explains Fred Lohmann of the EFF. "Communications service providers, i.e. Internet service providers, cable TV providers and digital entertainment companies, can use these laws to restrict Internet connections, cable TV receiption, and satellite TV connections. They can prohibit a multitude of uses of their services, which are necessary to the protection and the security of the Internet."

    Meanwhile, the MPAA has lobbyists pushing similar legislation in every other state. Thus far, similar laws have passed in Delaware, Illinois, Maryland, Michigan, Pennsylvania, Wyoming and Arkansas.

    The next state on the MPAA's list is Massachusetts. Violations of this law will be punished with fines up to $2,500 and up to 2 1/2 years' imprisonment. Violators in Illinois can even be fined for $25,000 and imprisoned for five years.

    Computer Scientist Edward Felton [sic, Felten] of Princeton University believes that these laws criminalize technologies that are intended to protect Internet surfers from their all-too-curious contemporaries. "Many common measures taken to protect one's sphere of privacy, such as public key encryption and firewalls are illegal under the terms of these laws, the professor worries. If a device can be used for illegal purposes, the device itself would prohibited also.

    The laws hold computer owners responsible for any components to which a cable connection can be made accessible, even if that device is used for a totally different purpose. "If the device can be used for illegal purposes, it's illegal."

    John Palfrey, the director of the Berkman Center for Internet and Society in Harvard, has likewise gone on record in opposition to the law in Massachusetts. He is concerned that the publicization of any weaknesses in the telecommunications security systems may be prosecuted criminally. "I haven't heard from anyone who wants this law enacted, not even among prosecutors," Palfrey said. "The only people who say that we need these laws are representatives of the MPAA."

    Critics did not become aware of this dvelopment until very late in the game, and nine more states are already working on strengthening their laws, as well. This will be a boon to the real pirates, who will barely be noticed when attention shifts to the masses of illegal television viewers.

For what it's worth, here is a more sensible critique of Colorado's failed stupor-DMCA bill.

Monday, May 19, 2003

Ban Assault Papers Now

Today I wasn't sure what to blog about, so I took a look at the editorial page of today’s Daily Monopoly. Los Angeles Times True to form, the Monopoly did not disappoint. Not satisfied to see its big brother, the Paper With a Record fisked on the phony issue of "assault" weapons, the Monopoly saw fit to throw in its own two cents. Unfortunately, those two cents were counterfeit.

    An Energized NRA

    This month, Sen. Dianne Feinstein (D-Calif.) began a hard fight to get Congress to reauthorize the federal assault weapons ban she courageously championed 10 years ago.

Mike Roos and David Roberti - former legislators, both - took their share of well-deserved heat over California's 1989 "assault" rifle ban. By contrast, I'm not sure how much "courage" it took for a California Senator to champion a law that had no real impact on California. Much less, I suspect, than it took her to push for San Francisco's illegal handgun ban 20 years ago, even while packing heat herself.

    Unless Congress acts, the ban will expire in September and manufacturers will once again be able to legally sell these mass-murder machines.

    [Emphasis added.]

Asinine attempt at alliterations aside, "assault" rifles are rarely used in crimes of any kind, and some models have never been used in mass murders. No point letting facts get in the way of the opinion of a "news" paper.

    There is no legitimate use for the Uzis and AK-47s and the dozens of other assault guns that can spray 30 bullets in five seconds.

As the editorial staff surely knows, no bullet-spraying varieties of any stripe are covered by the 1994 "assault" rifle ban. Those are banned under an earlier law which, unfortunately, will never expire. If the manufacturers of "assault" rifles made such patently false statements about their product, their execs would end up in jail. Too bad the laws of consumer fraud do not apply to the "news" media.

    These guns are not for duck hunting; they're weapons of outlaw terror.

Someone needs to fill the outlaws in on this fact, since the outlaws themselves very rarely use these weapons. Here comes the bait:

    However, with many pals in the Republican-led Congress, the emboldened National Rifle Assn. aims not just to block new gun-control laws but to reverse old ones.

Who's reversing anything? The law was just barely passed in 1994, and probably would not have passed at all if not for the sunset clause. Allowing a bad law to expire by its own terms is hardly the same thing as reversing it – not that there’s anything wrong with reversing it!

Now, the switch:

    The bill that Feinstein and others introduced would make the assault gun ban permanent and close a loophole. The 1994 law bans the domestic manufacture of high-capacity ammunition clips but allows importation of such clips made abroad. Feinstein's bill would bar both.

So much for the argument that all they're trying to do is keep the bill alive. This is a bill to expand the 1994 law, not merely to "extend" it.

    Even though President Bush says he backs the toughened ban and the public and police officers steadfastly support it, the NRA slams it as "the most sweeping gun ban ever." So, no surprise, Rep. Tom Delay (R-Texas) — faithful NRA supporter and grateful recipient of its campaign largess — has vowed to see that the ban expires.

What we see her is the Pauline Kael Syndrome (PKS): I don't know a single person who opposes the Ugly Gun Ban, therefore, the public at large must support that ban. If the American people generally felt the same way about gun control as newspaper editors did, there would have been no Republican sweep in 1994. Even Bill Clinton, the most extremely anti-gun President ever, acknowledges as much. Only journalists writing for near-monopoly papers don't.

    That's not all. The NRA is pushing hard to make gun manufacturers immune from civil lawsuits by crime victims. A bill that cleared the House last month would exempt firearms makers and retail dealers from liability.

Referring to "a bill" rather than its name and/or number is a perniciuos practice which, unfortunately, is not limited to the Monopoly. It serves no real purpose, except to make fact-checking more difficult. The bill in question appears to be H.R. 1036, the Protection of Lawful Commerce in Arms Act.

    No other industry has such immunity.

With the possible exception of tobacco and Oreo manufacturers, no other industry needs such immunity. When was the last time you heard someone of suing an SUV manufacturer for selling a non-defective SUV to a non-defective dealer, who in turn sold the non-defective SUV to a not-so-non-defective individual?

    Not automakers that have paid millions to victims after SUVs flipped over or defective tires burst. Or crib makers whose badly spaced bars choked babies to death.

Nor would gun manufacturers, under the proposed bill. If your gun explodes and injures you, you can sue the manufacturer or the dealer over that product defect just like any other. The suits targeted by this bill are the ones intended to re-fight legislative battles in the courtroom, alleging product "defects" where a legal product did exactly what it was supposed to do.

    Families of the Washington-area sniper victims have sued Bushmaster Firearms, which made the assault rifle the two alleged shooters used, and the Bull's Eye Shooter Supply store in Tacoma, Wash., which sold the gun.

First of all, Malvo and Mohammed’s Bushmaster was not an "assault" rifle, else they would not have been able to purchase it when they did. Second, why should Bushmaster Firearms be sued for the (alleged) misdeeds of the gun shop? If anyone was negligent in selling the gun to Mr. Mohammed, it was Bull's Eye, not Bushmaster.

    Because federal law forbade Lee Boyd Malvo and John Allen Muhammad to buy a rifle, the suits claim that Bull's Eye was negligent in selling one to them. They also claim that Bushmaster supplied Bull's Eye despite knowing that the store had repeatedly violated federal firearms records laws. The NRA-backed proposal would bar such lawsuits, no matter the extent of negligence.

That is a lie, of the kind which explains why the Monopoly declined to mention the bill by name or provide any hints as to where one might find it. Section 4(5)(A)(ii) of the Act expressly exempts "an action brought against a seller for ... negligence per se." Negligence per se is lawyer-ese for a negligence action based on a violation of a law.

    The NRA is energized now, pushing its Charlton Heston T-shirts and even baby bibs picturing preschool blocks with the letters NRA. Senators who defy the group are sure to face reelection revenge.

Payback Democracy's a bitch, huh?

    These lawmakers need to hear from the quiet majority who worry about their families' safety and this nation's burgeoning supply of guns.

The Monopoly’s L.A. Times's acute case of PKS is acting up again. These editors need to hear from the usually-silent, overwhelming majority of Americans who think that the Second and Tenth Amendments mean what they say.

UPDATE: Instapundit reports that CNN has admitted to running similar lies to those advanced in yesterday's L.A. Times, even while inexplicably "sticking by" John Zarrella, the hack bureau chief who intentionally faked that story.