Thursday, November 4, 2021

Arguments in NYSRPA v Bruen

Today’s hearing by the Court is literally one of the BIG cases of this year that WILL affect everyone in the US.  

This case may well decide the issue of “What does the Constitution mean when it says the ‘the right to 
keep and BEAR arms hall not be infringed’  (capitalization added).”  While most people may think this is a question that was decided 100 or 200 years ago, the fact is, the Supreme Court has not ever ruled on the issue.  

Amazingly, only recently has the Supreme Court decided what the 2nd Amendments means.  Until 2008 the Court had never said what it means to KEEP arms.  The issue of KEEPING arms was not actually ruled by the court to be an individual right until District of Columbia v. Heller 554 U.S. 570 (2008).  Until 2008 there where many that said the 2nd Amendment meant the only right to keep and bear arms was for those in the Militia or National Guard. 

Does the 2nd Amendment apply to the States? Or does it only apply to the Federal Government?  That question was not decided until 2010 in Mc Donald v Chicago, 561 U.S. 742 (2010) when the Court ruled that the 2nd Amendment applies to individual states because of the 14th Amendment. 

The Heller decision DID say the 2nd Amendment meant Americans had the right to arm themselves for Self Defense.  However, the Heller Decision did not specifically state when, where or under what conditions allowed an individual to be armed for Self Defense.  

Generally, the Heller Decision DID say a person had the right to carry a firearm for self defense.  There are two ways to carry a firearm- open carry, where the firearm is visible or concealed- where the firearm is not visible.  

At issue in NYSRPA v Bruen is the New York concealed carry license system.   New York prohibits open carry or “non-concealed” carrying of firearms.  For Concealed Carry, under  NY law, a person must be of good character, must have certain training and meet other requirements in order to get a concealed carry permit that would allow the individual to carry a concealed weapon in most places.  

Additionally, the person must show CAUSE;  the individual must show a specific and SPECIAL need for self defense that significantly differentiates the individual from the general public.  Saying “I travel through high crime areas” is NOT a reason for a permit.  Saying “there have been several muggings in my neighborhood” is not sufficient.  Saying “I go to this specific area on these specific nights and have received this specific threat” MIGHT be sufficient.  But as we see in this case, that could mean you get a permit that allows you to carry to that ONE location- but no where else.   Largely, in New York, your right to carry a weapon, may just depend on WHO you are and WHERE you live.   

New York’s system is NOT unique- but it is rare.     The “exceptional cause” or “good cause” rule exists in seven states- California, Hawaii, New York, California, Delaware, Massachusetts and New Jersey.   In the remaining 43 states, there are SHALL ISSUE laws.  If a person meets the legal requirements- whatever they are- a carry permit MUST be issued.  In the SEVEN jurisdictions with “good cause” laws, it doesn’t matter if you meet ALL requirements, have all the training, and live your life as an angel.  The the hearing officer or sheriff or whoever the licensing person is MAY CHOOSE to reject your application.   

For example, in 1956 Alabama was a “may issue” jurisdiction- just like New York is today.  In 1956, A black minister applied for a concealed carry permit because he had gotten threats against his life.  His concealed carry permit was denied - even though he met EVERY requirement under Alabama law.   Because Alabama had a MAY issue law that allowed the Sheriff or local official to decide if they “wanted” to issue the permit, the permit was denied.  In the past, many states passed “may issue” and “good cause” laws, so they could refuse to allow blacks, immigrants, union organizers and other “undesirables” their right to carry a gun.    If the state said “you can only carry with a license” and the state was a “may issue” state, they could deny the right to self defense- the Second Amendment- to anyone the ruling people did not like.   The black minister denied a concealed carry permit was a person that many in 1956 Alabama hated.  His name was Dr. Martin Luther King, Jr.  

Today, 43 States in the United States are SHALL ISSUE States.   If you meant all the rules, have a clean background , take the right classes and pay the fees, you SHALL be issued a concealed carry permit or license.   It doesn’t matter your race, sex, religion or any other factor; if you meet the requirements, you must be issued a permit or license.   

In the case before the Court, the NYSRPA and it’s members argue that since there is NO open carry of firearms allowed, the only option is to carry concealed.  The state of New York agrees.    The State of New York says they  issue concealed carry licenses to anyone that has good cause, so we are not violating the Second Amendment at all.   NYSRPA and its members say you should NOT have to prove you have “good cause” to exercise your 2nd Amendment Rights.  They say since it is so rare that permits are issued, the state is denying 2nd Amendment rights to almost everyone in New York. 

In the case heard today, one specific exchange between Supreme Court Justice Alito and New York Attorney General Underwood distilled the issues to their core: 

(From the Transcript of Oral Arguments in NYSRPA v Bruen on November 3, 2021):
JUSTICE ALITO: Could I -- could I -- could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They're all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has told -- has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?
MS. UNDERWOOD: That is in general right, yes. If there's nothing particular to them, that's right.
JUSTICE ALITO: How is that consistent with the core right to self-defense, which is protected by the Second Amendment?
MS. UNDERWOOD: Because the core right to self-defense doesn't -- as -- as this Court said, doesn't allow for all to -- to be armed for all possible confrontations in all places.
JUSTICE ALITO: No, it doesn't, but does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?
MS. UNDERWOOD: Well, if that ordinary person -- Mr. Nash had a -- a concern about his parking lot, and he got a permit. I think the extra problem in Manhattan is that you – your hypothetical quite appropriately entailed the subways, entailed public transit, and there are lots of people on the subways even at midnight, as I can say from personal experience, and the particular specter of a lot of armed people in an enclosed space --
JUSTICE ALITO: There are -- there are a lot of armed people on the streets of New York and in the subways late at night right now, aren't there?
MS. UNDERWOOD: I don't know that there are a lot of armed people-
JUSTICE ALITO: No?
MS. UNDERWOOD: I think there are people --
JUSTICE ALITO: How many -- how many--
MS. UNDERWOOD: -- there are people with illegal guns if that's what you're --
JUSTICE ALITO: Yeah, that's what I'm talking about.
MS. UNDERWOOD: -- referring to. Yeah.
JUSTICE ALITO: How many illegal guns were seized by the -- by the New York Police Department last year? Do you -- do you have any idea?
MS. UNDERWOOD: I don't have that number, but I'm sure there's a -- it's a substantial number.
JUSTICE ALITO: But the people -- all -- all these people with illegal guns, they're on the subway --
MS. UNDERWOOD: I don't -- I don't --
JUSTICE ALITO: -- they're walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can't be armed?
Justice Alito really brought this case into tight focus.  This case is REALLY about one issue - Does the Second Amendment mean ALL law abiding citizens have the right to carry for self defense? Or does it mean that only the select few, who a New York official feels are worthy, have the right to carry for self defense. 

Do we, as a people, live in a Country where a Constitutional Right can be conditioned upon Special Need?   We certainly never would say “you must show you have a ‘special need’ or ‘good cause’ to give a speech.  We would never say, “you must show a ‘special need’ to require the police to have a warrant to search your home.  

This case addresses that issue.  We will find out the decision, when the Court announces its ruling - mostly likely in June 2022.  

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Wednesday, September 8, 2021

To Boldly Go…

There are a few completely modern movie and TV phrases which have become a permanent part of our culture; phrases which one can say which anyone in the US would immediately recognize.   “I’ll be back,” “Make my day,” “Here’s looking at you, kid,” and “we’re not in Kansas anymore” are a few.  

But there is a phrase, or verse, that is known not just in the United States, or the English speaking world, but globally, that a very large percentage would know; and it was heard for the first time some 55 years ago today. 
“Space: the final frontier. These are the voyages of the starship Enterprise. Its five-year mission: to explore strange new worlds. To seek out new life and new civilizations. To boldly go where no man has gone before!”

Star Trek first premiered on September 8, 1966 on NBC.  The show was canceled after only three seasons and seventy-nine aired episodes.  

The show would not disappear from the airwaves, as many others would.  It would eventually give birth to 13 major motion pictures, 7 television and streaming series of 755 episodes and counting, 3 animated series, and well over 1000 authorized books.

But, the importance of Star Trek is not its television, streaming, theater, and literary success.  The importance of Star Trek is how it has changed, and continues to change, the world we live in.   

There is no doubt that other works have made major impacts on the world.   Jules Verne's Captain Nemo and the Nautilus inspired generations of submarine designers, oceanographers and explorers.  Upon Sinclair's "The Jungle" has been credited with the drive for food safety regulations in the US.  Admittedly, not all of these changes have been positive; the 1915 film "Birth of a Nation" was the inspiration for the birth of the modern KKK.

Yet it can be argued that no other modern dramatic work, no other work of science fiction, no other television show, has changed the world as much as Star Trek.  

All it takes to see Star Trek's impact is for one to look at their mobile phone.   Or perhaps take a look at a tablet computer. Kirk and Spock had and used both.  Touch screens, 3-D Printers, Smart Watches, have proliferated across the planet; all were seen, years- decades even- before their time, being used by the crew of the Enterprise.  Lt. Uhura and Cdr. Spock's single-ear, wireless earphones are certainly not much different than the Bluetooth headsets millions use. According to Jeff Bezos, the voice of Alexa was inspired by the voice of the computer on the Enterprise 1701-D (voiced by Majel Barrett-Roddenberry).   Private space transport is here, and there is a $10 million X-Prize for the development of the "Medical Tricorder."  The Autonomous Vehicles used to explore everywhere from under the oceans to space are not much different than the probes launched from Enterprise.  Even tractor-beams and transporter technology have moved from the theoretical and are currently under development.

Beyond the inspiration for new technology, Star Trek as certainly been an inspiration for exploring "strange new worlds" and seeking out "new life and new civilizations."   NASA and the ESA are filled with scientist, engineers and technicians who freely state that watching Star Trek inspired them to join NASA or the ESA.   And for those that may not be old enough to remember, the test vehicle of the Space Shuttle Program- an actual space shuttle, without rocket engines aboard- in which manned test flights were flown, was named Enterprise; a name demanded by a letter writing campaign of Trekker's in the 1970's to then US President Gerald Ford.  Enterprise (OV-101) was supposed to be refitted after the drop tests to fly in space, but structural changes during construction of Columbia (OV-102) made it cheaper to build Challenger (OV-099) from scratch.  A refit of Enterprise was considered once more, after the 1986 Challenger disaster, but again, the cost of refit made building Endeavour (OV-105) the better option.

Perhaps the both the greatest impact, and the least easy to measure, is the incredible social impact Star Trek has made.  In 1966, the racial diversity of the lead actors in the show was unheard of in American Television.  Dr. Martin Luther King, Jr. told Nichelle Nichols, Star Trek was one of the only shows he would allow his children to watch.  When Nichelle told Dr. King she was planning to leave Star Trek for Broadway, she said he told her that was not acceptable. Dr. King said she couldn’t leave because she was a role model for millions of young girls and women – the only African-American on TV in a role worth having.

The social impact goes beyond just the first interracial kiss on American Television (between Kirk and Uhura).  Star Trek used problems on alien worlds as parallels and parables for issues we were facing when the show aired.   Issues like racism, the risks and dangers of war, eugenics, genetic engineering, and the dangers of unbridled automation were addressed in the original series.  When Star Trek returned to the television screen, they continued to address social issues, such as apartheid, colonialism, terrorism, drug addictions, aging, the right to live, as well as continuing to address themes that mankind struggled with when the show began in 1966.   Above all, Star Trek presented a world of hope, a world that could be, where the social issues of today were no more.

The world has changed and science has advanced since the first broadcast of Star Trek, the night of September 8, 1966.   We landed on the moon.  Mankind has sent space craft to explore every planet in our solar system and even a "planet" that was demoted to a dwarf-planet while the space craft was  in route (Pluto).   We have landed a spacecraft on the moon Titan, orbiting Saturn.  We have sent space craft out into deep space, beyond the reaches of our solar system.  We can communicate around the globe electronically, and there is practically nowhere on Earth where we cannot maintain communication with our friends, family and home.

Technology has advanced, and we have in the 21st Century, many of the things Star Trek set in the world of the 23rd Century- although I am still waiting for the food station I can just talk to and tell what I want for dinner, and have it beam right in.  

Despite all our advances, and maybe because of them, the dream Gene Roddenberry showed us in Star Trek 55 years ago, remains:  The dream of a better world for all, as well as the goal and mission, to boldly go where no one has gone before.


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Friday, July 16, 2021

Will No One Rid Me of This Troublesome Priest?

The White House is expressing frustration about what it terms “misinformation” about COVID and vaccines on Social Media.  Expressing frustration is one thing,  but directing the suppression of statements the White House believes are wrong is quite another.   

The White House is very close to an old, historical precedent: “Will no one rid me of this turbulent priest?”

I wish this was unbelievable- but it is not.    I do not care if individuals are saying the Earth and Moon are flat and that dancing naked in Times Square will cure cancer, the White House has NO BUSINESS restricting, flagging, correcting or doing ANYTHING to ANY US Citizen or Resident’s Facebook Posts (or the statements of anyone protected you the Constitution).    

I do not care WHO is in the White House- the White House MAY NOT direct, decide or even influence the statements of anyone but themselves!!!    

Once the Government gets involved with saying content should or should not be allowed, they have crossed the line.    This is a plain and simple free speech and free press issue. 

To make matters worse, the White House is actively trying to make sure if a user is banned on one social platform they are banned on others.   THIS IS A GROSS VIOLATION OF CONSTITUTIONAL RIGHTS to have the White House use Social Media Platforms as a stalking horse!!!!  

While Facebook itself is NOT bound by the First Amendment, the White House is- and if Facebook is acting at the direction of the White House, then Facebook is acting as an agent of the Government.  Just as the The White House cannot directly censor individuals, it may not use a third party, acting at the White House’s direction, to violate the First Amendment either.   


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Thursday, June 10, 2021

Living In A Changing World, or Time For A New Atlas?

When I was a kid, I was taught there were certain constants, like there being Nine Planets in our Solar System, and there were Four Oceans on our planet.   

Well, Pluto got demoted, and I have to consciously remember there are only 8 planets in the solar system along with scores and scores of dwarf planets - and that while planetary moons can be satellites, our moon is not a satellite of earth.  There is some argument that the Earth and Moon actually are a binary planet system  because the same rule that demoted Pluto, actually established that the Moon meets the 3 criteria to be a Planet! (So technically we may be back to nine planets).  

If that all were not confusing enough,  according to National Geographic, we now have 5 Oceans instead of 4.   National Geographic will now update its Atlases and maps to show the Southern Ocean - which surrounds the continent of Antarctica.  

We lost a planet (maybe) but gained an Ocean.  

Now I have to buy a new National Geographic Atlas .  ok, to be fair, the old atlas shows a big country that crosses from Europe into Asia- The Union of Soviet Socialist Republics- and of all the countries in Europe I had to memorize the names and locations of for a test, probably less than half still exist- of course they are all still in that atlas - so maybe I am due for a new one anyway!

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Sunday, June 6, 2021

A GOOD Ruling from A California Court

I must again praise US District Judge Roger Benitez of the District Court of Southern California.  This praise is for his opinion in Miller v Bonta which was released on Friday.   At issue is the so called “Assault Weapons” Ban imposed by the People’s Republic of California.  Not only did Judge Benitez, in no uncertain terms, strike down the ban; he also addressed in the introduction of his ruling, the misconception that AR-15’s (etc) are used in a high percentage of homicides. 

From the introduction:
“One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter. Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle – not necessarily an AR-15.2 A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.3 In 2018, the statistics were even more lopsided as California saw only 24 murders by some type of rifle.4 The same pattern can be observed across the nation.”
Unfortunately, although Judge Benitez imposed a permanent injunction upon California enforcement of the ban, the State of California will appeal, and that appeal will go to the 9th Circuit.   If historical precedent holds, a three judge panel of the 9th Circuit will hear the case.  If the three judge panel agrees with Judge Benitez (they have previously on 2nd Amendment cases such as Duncan v Becerra) - the case will be heard by the ENTIRE 9th Circuit- which will of course strike down any case that holds in favor of the 2nd Amendment as a matter of course, just as they did in Peruta v San Diego and 
Young v Hawaii


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Sunday, May 30, 2021

A Television Show That Has Saved Lives

Forty-four years ago (May 28, 1977)  the last episode of “Emergency!” ran on NBC.  The show was certainly the most “realistic” medical show of the 1970’s- probably the most realistic until ER debuted.   From the beginning, the show presented the fire crew wearing SCBA’s,  protecting accident victims with full C-Spine precautions (backboards and cervical collars) and using a defibrillator in cardiac arrest- all of which were “cutting edge” at the time.  They even went so far as to show the “right” cardiac rhythm  for what the said a patient had, on the cardiac monitor- as well as following the correct protocols that were in place at the time.  Part of the reason the show was so “realistic” was that the shows lead actors, Randolph Mantooth (Johnny) and Kevin Tighe (Roy) actually went through paramedic training (they did not sit for the board exams) and did extensive “ride-a-longs” with LA County Fire.  The character of Mike Stoker - the engineer on the fire truck crew - was played by “real-life” firefighter/engineer Mike Stoker, and the dispatcher (seen in a couple episodes - but mostly just the “voice” of LA County Fire Dispatch) was played by LA County Fire Dispatcher Samuel Lanier 
Roy DeSoto (played by Kevin Tighe) and Johnny Gage (played by Randolph Mantooth)


The show was created by the legendary Jack Webb and there were multiple  crossover episodes with ADAM-12 (Officers Reed and Malloy showing up at Rampart General etc).

Maybe the most significant aspect of Emergency! was that it inspired a generation to become firefighters or medics.   I am willing to bet there are very few firefighters/paramedics/EMT’s who are older than 45, that do not know who are unfamiliar with “Johnny and Roy.”    To this day, Banner Hospital emergency rooms in Phoenix play the “Station 51 tones”  overhead as an alert when an ambulance crew is radioing the hospital.  (Tones are the alert sounds that are transmitted by fire department dispatch before a fire/EMS call and are unique to each station/unit in a department).   
Engine 51


A 2007 article in “University of Baltimore Law Review” credited the show with the rapid expansion of laws in a large number of states that officially created paramedics and paramedic licensing. Prior to the early 70’s ambulance crews barely had first-aid training and few people understood what a paramedic was or did.  Just before the show premiered, there were only TWELVE paramedic programs in the United States.    “Emergency!” helped to change that.   In 1977,  Newsweek credited the show for “ creat[ing] a national demand for [EMS/pre-hospital care] services." 
Squad 51


Some television shows are considered great because of ratings.   Some because they manage to address tough social issues, while still maintaining an audience (Star Trek immediately comes to mind).  Emergency! should be considered great because of the tangible effect of the show- the public demand for EMS services and the laws that authorized paramedics around the US- that can be witnessed and felt by every one of us today. Knowing you can pick up the phone in a medical emergency, dial 911 and have qualified help in minutes, is at least partially thanks to this show.  

If you have never seen Emergency! (Or want to see it again), it is streaming currently on Hulu.  

This is Carden Chronicles, signing off, KMG365.  

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Wednesday, April 28, 2021

Guilty Until Proven Innocent?

A juror in the Derek Chauvin trial has spoken to the press about his time on the jury, and some of what he says should frighten us all.  

Brandon Mitchell was Juror 52.   He is quoted in a CNN story as saying, 

“During the opening statements, I was curious or find out what the defense was going to bring to the table and convince us jurors. I didn't see any avenues to which they could go."

At the beginning of the trial, during opening statements, before a single witness is sworn or a single scrap of evidence is presented this juror is wondering what the DEFENSE is going to bring to convince the jurors that Chauvin was not guilty?  HOLY CRAP!!!!   In our system of jurisprudence, we are INNOCENT until PROVEN guilty. At the beginning of a trial a juror should NEVER be wondering how the DEFENSE is going to prove it’s case.  The ONLY side that must PROVE anything is the Prosecution!   The Prosecutor must prove the defendant guilty beyond reasonable doubt.    

The statement by this juror that he wondered how the DEFENSE was going to prove their case, along with the jurors written statement in his juror questionnaire that he wanted to be on the jury “because of all the protests and everything that happened after the event” he felt the trial was historic and he want to be part of that- says this juror was exposed to the case in advance, and that he did not go into the trial with an open mind.    

In this country, we are INNOCENT until PROVEN guilty, beyond reasonable doubt, based upon the preponderance of the evidence.   Jurors are supposed to understand that, and a guilty verdict MUST be one that is arrived at through a process such that when the verdict is delivered, no one should be able to point out obvious flaws and errors.  

In this case, based on the published statements of this juror, there is HUGE concern that Chauvin did not get a fair trial.  At least one juror felt Chauvin was guilty going in, or at least that the defense needed to PROVE Chauvin innocent.  

This should frighten ALL of us.   Every one of us should have absolute faith that our judicial system will treat us fairly and that if accused of a crime, we are presumed innocent until proven guilty.   All of us should be afraid that if ever taken to court, we might have a Juror 52 who goes into the trial, wondering how the defense is going to prove us innocent.  


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