Six Degrees of Lawyer Denny Crain

I was just talking badly about last night’s anti-Bush/Brady Bill lapse lamentation/screed episode at Boston Legal, which stars William Shatner as lawyer Denny Crain who believes in a person’s right to bear arms, and is shown on ABC, which also has John Stossel as one of their reporters, who just had an excellent opinion piece on Real Clear politics about the right to bear arms and the Brady Bill’s not making a damn bit of difference, the exact opposite of Boston Legal last night, but exactly on point with lawyer Denny Crain, which I found via LAW Professor Reynolds. (Weird how this happens, n’est pas?)

Congress gives gun industry a lawsuit shield
President Bush expected to sign bill following approval by House

Just in time to put the clamp on more lunacy, like the settlements with the D.C. sniper victims’ families.

Opponents say the strength of the bill’s support is testament to the influence of the gun lobby. If the bill had been law when the relatives of six victims of convicted Washington-area snipers John Allen Muhammad and Lee Boyd Malvo sued the gun dealer from which they obtained their rifle, the dealer would not have agreed to pay the families and victims $2.5 million, they said.

Don’t tell me this bill will not make a difference,” said President Clinton, who signed the Brady Bill into law.
Sorry. Even the federal government can’t say it has made a difference. The Centers for Disease Control did an extensive review of various types of gun control: waiting periods, registration and licensing, and bans on certain firearms. It found that the idea that gun control laws have reduced violent crime is simply a myth.
…(the study) found that what felons fear most is not the police or the prison system, but their fellow citizens, who might be armed.

37 Responses to “Six Degrees of Lawyer Denny Crain”

  1. Cullen says:

    I am pretty close to being a gun nut. I will say that I am not in favor of waiting periods or banning certian types of guns. I am, however, in favor of registration and licensing.
    Before you go, what the hell, Cullen … let me explain. I am also in STRONG favor of mandatory gun education ownership classes. I firmly believe that if you want to own a gun, you should now how to use it. And prove it.
    2nd Amendment nuts will jump and down over this, but look at it this way. Voting is a right also. But we’re looking at (and I’m also strongly in favor of) enforcing Photo IDs for voting. I don’t see any difference.
    Most, if not all, states require hunting safety classes to get a hunting license. Why not extend it to include gun ownership in total? IMHO, guns will be used more like the tools they are intended to be if more people know how to use them and the safety measures one should take.

  2. Mr. Bingley says:

    Works for me Cullen.

  3. Cullen says:

    Well. A stupid, stupid, Geogia federal judge just ruled our cool new Voter ID law illegal. Said that requiring someone to purchase a picture ID amounted to a Poll tax.

  4. Kathy K says:

    I’d like to see something like that, cullen – in some ways. But – then you have records. And one of the reasons for the Amendment #2 is so we can defend ourselves against the government, if it ever becomes necessary (no, I’m not one who thinks we are anywhere near that point – yet). And having a license just makes it easy for them to come and confiscate the guns.
    Btw, Cullen – real easy to get around that Poll tax thingy – have the state give out the ID’s for free – and have offices that people can get to. 🙂

  5. The Real JeffS says:

    Cullen, I agree that people who own weapons need to know how to use them. The NRA (for all of its faults) offers that sort of training. I recall that some states do as well, as part of getting a hunting license. Instead of weapons registration, merely prove that you’ve taken the training. This would work on the same level as a driver’s license, where (in most places) you have to take a training course to take the test.
    Illinois at one time (and may still) required a license to buy ammunition. A one time fee gave you a special photo ID that you had to show in order to buy ammo.
    The problem? It cost $5, and you mailed the application and photo to Springfield for processing and card creation; the card was returned by mail. I recall such IDs being issued to Al Capone and Lassie.
    It’s not the system, it’s how serious people take it. Training is easier to sell than registration.

  6. Cullen says:

    And one of the reasons for the Amendment #2 is so we can defend ourselves against the government, if it ever becomes necessary (no, I’m not one who thinks we are anywhere near that point – yet). And having a license just makes it easy for them to come and confiscate the guns.
    While I don’t disagree with this, I would argue that it’s more an inferred reason than an implied one. The problem, as I see it, is that the majority of problematic gun users are in the criminal element. They are going to make it bad on those of us who use guns legally. If we do not accept and push for legislation that works, than we are going to have draconian measures pushed down our throats.
    I am not opposed to records. If/when the gov’t ever got around to collecting firearms, there would be enough notice. They’re going to know you have them one of two ways … they’re going to have it on paper, or you’re going to be shooting at them.
    I could debate armed resistance for quite some time. How long do you think an organized militia (even a well-organized one) could stand agains the National Guard? Because they would be activated to counter any homeland insurgence — it would be deemed such, maybe even terrorism.
    But then you could counter how many military would join the ranks of the militia … yadda yadda … this debate could go on.
    The truth is that the majority of American are law abiding. Even if the gov’t said, “Okay, the second amendment thingy is wrong. We’re taking all the guns.” Most people would turn them in, I think. Because it’s not worth the Federal crime (which I’m sure possession would become) to not comply.
    So, I argue again, that self-regulation is the best defense and offense against such a hypothetical situation.
    As far as the “poll tax” on voter IDs … apparently the governor did have a provision in the law that would give folks a free “voter ID” if they could not afford a driver’s license or state issued ID card. So, I still wonder, what’s the problem with this. I have a feeling this case isn’t going to end here.
    And Jeff, I agree. I think the DMV is the perfect place to handle something like that.

  7. Why wouldn’t the DMV be able to handle the ID’s, just like they do here? I’m with you guys on that. Actually, completely behind Kathy’s suggestion. Have an ID line at every state unemployment or social services office. I’m also on the side of the background check, as I know one too many certifiables prone to violence who get to carry guns as part of their job description. (and I’m NOT talking military) The downside is that it’s often a waste of paper, as the periods in time when said psychotics are institutionalized never show up AND it’s all too easy for Congress to add ‘jaywalking’ as one of the elements for disqualification AND it’s just one more way for the government to crawl up your average law abiding citizen’s butt.
    And I can’t believe no one said anything about my exceedingly clever connection string.

  8. I’m against registration. Hawaii has had registration and licensing for two decades, both rifle and pistol, and their police say that it hasn’t helped in solving a single crime – so what’s the purpose behind it? Maryland has had a “ballistic fingerprinting” scheme and registered some 17,000 guns since 2000, with zero results in crime-solving – at a huge taxpayer cost.
    Gun registration schemes are typically precursors of confiscation as recent occurrences in Canada, Australia, and Britain attest – and is also considered a failure, even by a Canadian institute.
    As for the DMV, I sure wouldn’t want the California DMV handing out another 100,000 fraudulent illegal alien licenses to criminals. Maybe they aren’t the best bureaucracy to be handling identity-related issues.
    I totally agree on education and safety requirements and suggest that Gun-safety and education belongs in the School’s curricula, start early and make it ubiquitous – like Safety-Show-&-Tell – later with Trapshooting in High School PE. Pacifists can opt-out.

  9. Cullen says:

    I respect the idea Keith. And I long for the days when trap and skeet shooting was taught alongside home ec. Unfortunately, that’s never going to happen again.
    I only support registration and licensing in the realm of education and training programs. I want to do the best to keep legal weapons out of the hands of criminals.

  10. One point in your excellect post seeks a comment.
    How does the Centres for Disease Control get mixed up with who has the right to have a GUN?
    Is a gun a communicable disease?
    You might get killed by a gun, but someone else has to pull the trigger, unless it’s suicide or an accidental discharge!
    I think we should be told!

  11. Nightfly says:

    Do you really think that the majority of gun owners would peacefully surrender all their firearms? One may as well put up signs at the town limits saying “Come for the Shopping, Stay for the Crime Wave.” Though no gun owner myself, that might just be enough to make ME head for the hills in cammos.
    And those guys in New London may well be justified at holing up and taking shots at the agents who come to evict them. They won’t – nor do I think they should, it would only make it worse for them – but they would be in the right, I think. The problem is, right AND dead is not a tenable solution.

  12. Cullen says:

    I honestly do believe, that yes, if the government said, “We’re going to make it all better and take away all the guns,” that there’d be a good number of folks — probably the majority — turn in their guns without a fight.
    Would I be among them? Probably not.
    But the gov’t is never just gonna come out and say, “Give us your guns!” No, they’d back into it.
    Something like: In an effort to preserve the sanctity of the 2nd Amendment and increase personal safety thoughout the nation, we are relocating all personal firearms to a centrally located facility in your city/municipality. You still have the right to bear them, but must now check them out for authorized use.

  13. Mr. Bingley says:

    I think Mike the CDC gets involved because ginshot deaths are categorized as “lead poisoning” for statistical purposes.

  14. Mr. Bingley says:

    Now there’s an appropriate typo…

  15. major dad says:

    Did somebody say “Gin”? I’m game!

  16. I agree that the anti-gun fervor that made schools gun-free zones insuring a population of disarmed victims means that we will see fewer and fewer trapshooting classes, but at least minimal gun safety via the “Eddie Eagle” children’s program is happening at least in Bakersfield, Tennessee (perhaps not surprisingly), Maryland, and Ohio among other locations. And Bakersfield is in California, so maybe the curricula could be expanded.

  17. The Real JeffS says:

    Actually, the best gun safety course that I ever had was a speed draw demonstration in middle school. Shooting blanks, but the guy made good points in how to handle firearms.
    Too bad the anti-gun nuts have killed that avenue.

  18. Dave J says:

    My problem with the immunity bill for the gun industry is that I don’t see how Congress has the authority to do this: it’s a matter of state tort law over which the feds do not appear to have any legitimate power. I’ll have to read the bill to be sure, but I don’t expect to change my mind on this: despite the apparent belief of many on the Hill, just saying the magic words “interstate commerce” does not create federal jurisdiction from thin air.

  19. The Real JeffS says:

    Interesting point, Dave. And a good one. Might be we’ll see this in court, eventually, no?
    But if memory serves me, a number of states already have similar legislation. I hope this latest Federal law doesn’t change that….just in case.

  20. The House passed an immunity bill that’s not getting as much Anti-attention and hysterical bleating, the Personal Responsibility in Food Consumption Act that, would ban new claims and dismiss pending personal injury claims brought against food manufacturers, marketers, advertisers, distributors, sellers and trade associations alleging that consumption of food products caused weight-related health problems.

  21. Shoot. I was gonna use the proceeds of my suit for a new suit.

  22. Mr. Bingley says:

    This is a post from DaveJ that the spam filter commies do not want you to see:
    Here’s what I wrote; either tell me what the problem might be, or go ahead and post in the comments manually yourselves (under my name):
    Well, I’ve read the bill (S. 397) on Thomas, and I’m not as certain as I was above. It does, of course, refer specifically to products shipped or transported in interstate or foreign commerce, so arguably it might not apply to plaintiffs in the same state as where the product was manufactured.
    Another problem with the bill is that it applies not only to future civil and/or administrative actions, but to those that are ALREADY PENDING, requiring both federal and state courts to dismiss them. While this is not an ex post facto law (such things exist only in the criminal context), it’s somewhat analogous, and I suspect this kind of retroactivity could raise Due Process problems. And for Congress to tell a state court to dismiss a suit already brought under state law obviously presents further and serious federalism questions that wouldn’t be raised if this were just an exercise of Congress’s power to establish rules of practice and procedure for the fdederal courts.
    Jeff, regardless of whether the federal statute is constitutionally valid or not, I don’t see it likely affecting state statutes on the subject at all: they should be able to co-exist, as they wouldn’t conflict and there’s nothing in the federal language about preempting state law.
    Keith, I worked on Florida’s “cheeseburger bill” and I support such efforts at the state level, but again, the bases for federal jurisdiction may be tenuous at best. Unlike the Senate gun bill, the House food bill (HR 554) doesn’t even specifically restrict itself to products that have moved in interstate or foreign commerce. Section 4(4) of the bill defines a “qualified product” as a food as defined by section 201(f) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321(f)), which in turn defines “food” as:

    (1) articles used for food or drink for man or other animals,
    (2) chewing gum, and
    (3) articles used for components of any such article.

    Notice how there’s no language limiting the definition to things that have moved in interstate or foreign commerce? The only attempt at providing a basis for federal jurisdiction in the House food bill is the boilerplate Congressional finding in Section 2(a)(2) that “the activities of manufacturers and sellers of foods and beverages substantially affect interstate and foreign commerce”. That’s invoking Wickard v. Filburn, 317 U.S. 111 (1942), the case from the New Deal Court that practically said Congress could do anything in the name of interstate commerce, including tell a farmer not to grow corn that he sold only locally, because that “substantially affected” the interstate market. For a GOP-controlled House to rest the legitimacy of its powers on Wickard is a pathetic demonstration of just how little most of its members really care about their supposed commitment to federalism.

  23. The Real JeffS says:

    Thanks, Dave. I’ll bet the filter commies balked at “cheeseburger”.

  24. The Real JeffS says:

    Nope — but it was worth a try! ;-P

  25. Mr. Bingley says:

    Posting this for Ken:
    I came to the discussion late, being away on a Mission of Great Importance, but some additional thoughts?
    THS: “put the clamp on more lunacy, like the settlements with the D.C. sniper victims’ families”Actually the settlements would not have been affected because the store that sold the weapons was negligent. The bill allows suits for negligence and for defective products. It only bans suits based on misuse of the products.
    Registration and licensing: Keith said it. Registration is useless and wasteful. In no way is it analogous to a voter ID. What is analogous to voter ID is the requirement to show ID for a background check. What has not been mentioned above is the fact that criminals are not required to register their weapons. In Haynes v. U.S., the Court ruled that requiring criminals to register violates the 5th Amemdment right against self incrimination. It is also in no way analogous to license and registration for automobiles. License and reg are only required to drive on a public roads. There is no law against owning and driving cars without L&R on private property.
    I will add that, to paraphrase Chief Justice Marshall, “the power to license is the power to destroy”. California has a CCW law but it is at the discretion of the local police. In urban areas, the common policy is simply to refuse to issue (except, of course, for the rich and politically connected). A right that depends on the whim of the government has ceased to be a right.
    Mandatory gun training: Absolutely opposed. I am in favor of firearms training and highly recommend it, but to require such training is an infringement on the right to firearms ownership. It gives the government the power to ban by simply making the training excessively difficult or unavailable. I haven’t the time to look it up (and it is very possible that I’m confusing the details) but I seem to recall an issue with the 1934 or 1938 act, in which the government required a stamp for transfer of machine guns, but refused to print the stamps.
    In any case, such training is only targeted at the miniscule (and continually declining) fraction of deaths by accident. It does absolutely nothing to decrease the far larger toll of violent crimes. To put it in perspective, in 2002, there were 762 deaths from accidental firearms discharge compared to 3,447 accidental drownings. There are more than 40,000 automobile fatalities every year; perhaps we should also require mandatory driver training and licensing.
    “If we do not accept and push for legislation that works”: But try to find some. Very little anti-gun legislation works, at least for the purported goal of decreasing crime, and the legislation that does work has been in place for years. Corollary to this, we should not accept and should fight against legislation that does not work. Most especially, we should oppose any legislation that infringes on rights, as nearly all the proposed legislation does.
    “the majority [of people would] turn in their guns without a fight”: No doubt. They are law abiding. But that misses the point entirely. The point is to prevent confiscation. Most in the gun control lobby have made no secret that confiscation is their ultimate goal and that all other measures are only steps toward that goal. One Congressprick (Schumer, I think) said immediately after the Brady Bill was passed “They complained about the nose in the tent. Well here’s the rest of the camel.” (or something close to that)
    Interstate commerce: Sorry, Dave, but I have to very strongly disagree. This directly affects interstate commerce because lawsuits in one state can destroy the access of people in other states. You may argue that product liability laws in one state can do that also but there is a very crucial difference. The worst thing that can happen in product liability cases (aside from complete destruction of the industry) is that the industry stops selling in that state, which does not affect the other states. In this case, the lawsuits go ahead even if the product is not sold in that state. Handguns are banned in Washington, D.C., yet there are lawsuits against manufacturers over guns that were not sold in Washington, and those lawsuits have the potential of denying me my right to purchase a firearm.
    Special question for Dave: To briefly change the subject, this brings up an interesting question about the “cheeseburger” bills. Obviously, companies could stop selling fast food in states that allowed such suits, but what about people who get fat then move to such a state? Not really looking for an answer, just a weird point to ponder.
    {editor’s note: MT-Blacklist is really starting to piss me off!}

  26. Ken Summers says:

    Thanks, Mr. B. I actually had tried deleting particular words but never found the one(s) that triggered Blacklist.

  27. I think it was “Summers”.

  28. Dave J says:

    “This directly affects interstate commerce because lawsuits in one state can destroy the access of people in other states.”
    The logical conclusion of that premise would seem to me to be that since lawsuits over anything can have an impact on actors anywhere in the world, then Congress can therefore regulate anything, because all activity can result in litigation–however frivolous–and therefore have some kind of effect on interstate and/or foreign commerce. To suggest that makes a mockery of the idea that the federal government is one of limited, strictly enumerated powers.
    “Obviously, companies could stop selling fast food in states that allowed such suits, but what about people who get fat then move to such a state? Not really looking for an answer, just a weird point to ponder.”
    If the company doesn’t do any business in the state, it’s difficult for me to see how the courts there are going to have personal jurisdiction over it, regardless of what the substantive state law is on the subject of the cause of action. “Minimal contacts” are required in order for a court to exercise personal jurisdiction over a defendant without violating Due Process. And this is only a baseline: additional statutory requirements might be in the state’s long-arm statute.
    Therefore, in your hypothetical example of the plaintiffs who get fat somewhere else and then move to a state where the company doesn’t do business, they’re most likely going to have to sue the company somewhere else, i.e., not in the state where they reside but most likely in the state where the company has its corporate HQ (probably Delaware) or its principal place of business.

  29. Dave J says:

    (Not corporate HQ: where it is legally incorporated.)

  30. Ken Summers says:

    Dave, I think you missed my point (which was what led to my curiosity about the fast food). If a state can allow lawsuits for a product that isn’t even sold in that state, that seems like it definitely affects interstate commerce, certainly to the extent that the feds can take jurisdiction.
    The companies, in such a case, don’t even have the option of avoiding liability by refusing to sell in that state because they are held liable for actions in a different state. I really fail to see how that could not be a federal issue (even if it’s not strictly under interstate commerce).

  31. Dave J says:

    I guess I’m just hopelessly confused, because I still honestly don’t get what you’re saying.
    “If a state can allow lawsuits for a product that isn’t even sold in that state…”
    Well, if it isn’t sold there, obviously it had to have gotten there somehow, and was thus transported across state lines by someone at some point. But just because it was at one time an article in interstate commerce can’t possibly mean that Congress can therefore regulate anything with respect to it. That’s the essence of United States. v. Lopez, the 1995 decision that finally said Congress had crossed the line and rightfully chipped away at the idea that the Commerce Clause was a blank check. Gun-free school zones in Lopez, and later the Violence Against Women Act in Lopez‘s progeny, United States v. Morrison, had no real connection to commerce in any meaningful way at all.
    Just because one can bring suit in state court under the state’s general common law of torts, the fact that the suit happens to be related to a product that at one point moved in interstate commerce does not, to me, seem to be a basis for Congress to have regulatory authority over the matter. Now, as I said above, I believe it can certainly say, as a procedural matter, that the federal courts should dismiss any such suits they might currently have jurisdiction over on the grounds of diversity of state citizenship among the parties, but Congress telling a state court what to do is VERY different.
    “…that seems like it definitely affects interstate commerce, certainly to the extent that the feds can take jurisdiction.”
    I guess my problem with your logic is that it all sounds far too much like Wickard. If the Commerce Clause means the feds can tell a farmer to not grow corn, then there really is no limit on the federal commerce power in any practical sense.

  32. Ken Summers says:

    I understand your point about the commerce clause, but it seems to me there must be a federal issue if a state can allow lawsuits for acts that occur in other states (even if a third party later causes damage in the suing state).
    It’s rather far beyond the current point, but what if a state started allowing lawsuits by residents for injuries that occurred in other states? Or even by non-residents? It’s outside their jurisdiction but jurisdiction is defined by the state, no?
    Try this one: A state, in the interest of “public safety”, institutes a statewide 30 mph speed limit and requires all automobiles in the state, no matter where owned or registered, to have governors limiting the car to 30 mph under all circumstances (ignore federally funded roadways for the moment). Further, it allows any resident injured, or family of someone killed, to sue the manufacturer if the governor was not installed, or even if it was removed illegally.
    Further, it allows lawsuits by a resident injured by an out-of-state car, driven by a drunk driver at excess speed after illegally crossing the state border, to sue the manufacturer.
    I guess my fundamental question is: Is there no point at which the federal government can step in and tell a state it has overstepped its jurisdiction?

  33. Ken Summers says:

    Upon further reflection, that case I cited about acts in other states is not quite so far-fetched. Families of victims are allowed to sue for pain, loss, mental anguish, etc. because a close relative was killed.
    Suppose a state allows its residents to sue manufacturers for anguish, bereavement, etc., if a relative who lives in a different state is killed in a different state with a gun that never came into the state of the plaintiff.
    Again, is there no point at which the feds can slap down a state for overstepping?

  34. Dave J says:

    “It’s rather far beyond the current point, but what if a state started allowing lawsuits by residents for injuries that occurred in other states? Or even by non-residents?”
    As I noted above, the state could theoretically pass statutes authorizing this, but such statutes would be irrelevant: courts in the state could not exercise jurisdiction over the defendant(s) without the “minimal contacts” required to comport with Due Process.
    “It’s outside their jurisdiction but jurisdiction is defined by the state, no?”
    Only up to a point. Many states’ long-arm statutes simply define their jurisdiction as reaching out to the maximum extent allowed under the federal Due Process Clause.
    “Suppose a state allows its residents to sue manufacturers for anguish, bereavement, etc., if a relative who lives in a different state is killed in a different state with a gun that never came into the state of the plaintiff.”
    Then I think the state has two problems: 1) the statute authorizing this is probably itself an unconstitutional attempt by the state to regulate interstate commerce and 2) even if the statute were facially valid on those grounds, it’s hard to see how there are sufficient “minimal contacts” between the state and the defendant such that the courts there could have personal jurisdiction without violating Due Process.
    Welcome to first-year Civil Procedure, Ken. 😉

  35. Ken Summers says:

    Okay, since I’m completely clear on exactly what “minimal contacts” means (I get in a general, layman’s way), I’ll go back and ask about a previous statement you made on the cheeseburger law issue: If a gun company does no business in a state, but guns are smuggled in illegally, does that constitute sufficient “minimal contact”?
    Forgive me, I’m in learning mode.

  36. Ken Summers says:

    I meant “not completely clear”

  37. Dave J says:

    I’m not certain: there’s probably case law out there on this sort of question, but simply placing something in the stream of commerce that might wind up someplace else at some point does not strike me as enough for the ultimate destination state to have jurisdiction over the originating party if it otherwise does no business there. And admittedly, I hardly remember every detail in this area of law myself.

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