Monthly Archives: June 2022

Article 1, section 2 of the U.S. Constitution states in part, " The House of Representatives shall be composed of members chosen every second year by the people of several states." So who are 'the people' who get to vote? The founding fathers use the term 'the people' to mean free white males such as themselves.

Article 2, section 8 talks of the importance "of the Militia to execute the laws of the Union, suppress insurrections and repel invasions to provide for organizing, arming and disciplining the Militia." The dictionary term for Militia is "An army composed of ordinary citizens rather than professional soldiers, on call for service in an emergency."

The second amendment is all about the importance of maintaining a well regulated Militia.

"A well regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." One sentence. We know in 1791 the term 'the people' does not mean everyone. It means free white males. One way the constitution provides for arming the Militia is to ensure that its citizens soldiers have the right to keep and bear arms.

The second amendment is about protecting the Militia and the citizen soldiers that are part of a Militia. If the founding fathers wanted to protect stand alone individual gun rights, they could have done so without tying gun rights to a well regulated Militia. Even then gun rights would have been for people like themselves.

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Letter to the Editor-Second Amendment | Opinion | swiowanewssource.com - The Audubon County Advocate Journal

The Advisory Committee on Civil Rules of Federal Judicial Conference recently approved several amendments to Fed. R. Evid. 702 intended to quash lackadaisical and flaccid Daubert gatekeeping.

Below is the amended text of the rule, with deletions in brackets and italics, and additions underlined and bolded:

Rule 702. Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if [the court finds that] the proponent has demonstrated by a preponderance of the evidence that:

These amendments do not change the substance of Rule 702s standards for admission of expert testimony helpfulness, factual basis, reliability, and fit. Instead, the amendments are intended to emphasize judges role as gatekeeper and remind courts this is not a question for the jury to decide.

To that end, the first amendment provides that a judge should exclude expert testimony unless the substantive criteria of Rule 702 have been met by a preponderance of the evidence. The Draft Committee Notes accompanying the proposal explained, [M]any courts have held that the critical questions of the sufficiency of an experts basis, and the application of the experts methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104. Too many courts have succumbed to this incorrect application, with far too many judges, instead, ruling that helpfulness to the jury, sufficient basis, reliability, and fit were matters of weight for the jury to decide. The Draft Committee Notes further clarified, [T]his does not mean, as certain courts have held, that arguments about the sufficiency of an experts basis always go to weight and not admissibility. Rather, it means that once the court has found the admissibility requirement to be met by a preponderance of the evidence, any attack by the opponent will go only to the weight of the evidence. The Committees intent is to reiterate the proper standard with explicit wording in the black letter of Rule 702.

The second amendment in subsection (d) requires an experts opinion to demonstrate that the experts reliable principles and methods were reliably applied to the facts of the case at hand. The Draft Committee Notes clarify that this amendment is intended to stop extravagant claims that are unsupported by the experts basis and methodology. This change is intended to stop courts from justifying admission of expert opinion by reasoning that the methodology matters, not the ultimate opinion. In other words, the amendments are intended to signal to judges that an expert should be excluded if the conclusion does not logically follow from a reliable application of the experts principles and methods, which will potentially lead to a higher rate of expert exclusions than were seen under Daubert.

Nothing in this amendment imposes any new procedures or standards. It is merely an effort to clarify the standard and to begin to rectify the ubiquitous errors made by courts when determining the admissibility of expert opinion. The approved amendment will be reviewed by the Judicial Conference in the fall, then the U.S. Supreme Court, and finally the U.S. Congress. If Congress approves the amendment, it will take effect on December 1, 2023

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Judges, Be the Gatekeepers 702 Needs you to Be | Husch Blackwell LLP - JDSupra - JD Supra

As Senate negotiators continue work on fine-tuning concepts for a gun control framework announced last week, one issue that has received surprisingly little attention is the potential inclusion of juvenile records in federal firearm background checks.

Who could argue with that? one might say. The more records available for review, the better.

The truth, as usual, is more complicated than most people realize.

Including juvenile records in firearms background checks presents a number of thorny issues, including those related to due process, developmental psychology, and logistics. Anyone who values the Second Amendment and fundamental fairness should approach the issue with caution and skepticism.

First, it is important to understand how the current federal background check process for firearm acquisition works.

In the case of a federally licensed dealer (FFL), the intended recipient visits the FFLs place of business and fills out a form answering under penalties of perjury yes or no to various questions about potentially disqualifying adjudications, commitments, convictions, or other circumstances.

The FFL then contacts the FBI or a state criminal records agency (depending on whether the state in question has opted in to administering its own system), which checks the individuals personal identifiers against the records available to the system.

It is important to understand that under current law, disqualifying circumstances are meant to be categorical and objective. That is, the only question for the background check system is whether any records indicate a person falls into a statutorily defined class of prohibited persons.

If not, the transfer is approved.

If so, the transfer is denied.

If the matter is unclear, the transfer is delayed, and the underlying circumstances are subject to further review.

In order to ensure such delays dont lead to de facto prohibitions without actual proof of ineligibility, however, FFLs have the option (but not the requirement) to transfer the firearm after three business days elapse from when the background check was initiated. The FFL, of course, must not have any reason to believe the person is actually prohibited before making the transfer.

In the case of a delay-transfer, background check analysts continue trying to resolve the question of the persons eligibility for several more weeks (up to about 90 days). If a disability is eventually established, the case will be referred to the Bureau of Alcohol, Tobacco, Firearms, and Explosives for possible retrieval of the firearm and, where appropriate, prosecution of the individual for lying on the background check form.

The records that populate the background check system are overwhelmingly provided by the states, and include records of arrest, conviction, and the outcome of other judicial proceedings.

The statutorily defined categories of prohibited persons most likely to implicate juvenile records include any person who:

This is where things get complicated.

Thats because there is a separate justice system pertaining to juveniles in the states.

As explained on a government website that describes the features of the juvenile justice system, the process operates according to the premise that youth are fundamentally different from adults, both in terms of level of responsibility and potential for rehabilitation.

In line with these goals, the system typically takes a more paternalistic and less punitive view of justice than the adult criminal justice system. The website continues:

The juvenile justice system takes a significantly more restorative approach than the adult criminal justice system. A truly successful case for youth would result in the adolescent learning from the experience without exposure to the severity of an adult prison, altering their decisions and life course moving forward, and having no future contact with the juvenile or criminal justice systems. ***

There exists a firm belief that youth can and will lead healthy and constructive lives if given the opportunity to grow instead of being presumed irredeemable and segregated from their communities.

The flipside of this restorative approach, however, is that the juvenile system is typically more informal and less focused on procedural due process than the adult criminal justice system. Most states do not consider adjudications of delinquency in the same category as criminal convictions.

This promotes the goal of giving the system more options to provide services and rehabilitative opportunities to the accused juvenile.

From the juveniles perspective, however, there are not all the same procedural protections from state action as in the adult system.

This restorative emphasis and lower threshold of judicial process also means records of juvenile adjudications are treated differently than criminal convictions. Most are not considered public records, for example. And often they are purged when the juvenile reaches the age of majority. In general, juvenile records are less likely to be held against the individual than records of criminal convictions.

Of course, juvenile misbehavior varies in degrees. And in most states, very serious behavior homicides or assaults resulting in serious physical injury, for example can lead to a juvenile being prosecuted in the adult criminal justice system, with all the usual consequences that implies.

Given all this, including records of juvenile adjudications in firearm-related background check systems can introduce serious legal, philosophical, and practical problems.

Developmentally, juveniles as compared to adults are likely to be relatively ignorant, impulsive, overconfident, and shortsighted to lack perspective and mature judgement. All this, of course, predictably leads to more disruptive tendencies. But sometimes acting out on these tendencies says less about the character of the juvenile than the persons age, development, and circumstances.

The very existence of juvenile justice systems throughout the states demonstrates a consensus that it is cruel to allow bad decision-making in youth to hold back someone in adulthood who has gotten his or her act together.

Moreover, when it comes to due process and the ability of juveniles to assert their rights against unjustified or erroneous state action, they do not have the resources, sophistication, or procedural benefits available to defendants in the adult criminal justice system. In other words, even innocent juveniles may have to take the rap, rather than beat the rap, simply because they do not have the means, knowledge, or wherewithal to assert their rights.

Practically speaking, the considerable problems that have plagued background check systems even with criminal records are likely to be even more pronounced with juvenile records. The quality, availability, reliability, consistency, accuracy, and thoroughness of juvenile records will almost certainly be less across the board than criminal records, because the very point of having a separate system is so these records DO NOT follow juveniles throughout their lives.

Finally, using juvenile records against individuals ONLY in the Second Amendment context disparages this fundamental liberty and treats it as a second-class right.

This should chill the heart of any pro-gun advocate who understands the essential difference between a right the government cannot abrogate without compelling and well-established justification versus a privilege it can administer, bestow, and deny at its own pleasure.

Given these issues, NRA-ILA recommends limiting records about juveniles in firearm-related background check systems to those pertaining to criminal convictions in the adult system.

Rest assured, the NRA will be closely scrutinizing the outcome of the Senate negotiations to ensure issues pertaining to juvenile records are not used as an end run to prevent law-abiding, responsible adults from benefitting from the right to keep and bear arms.

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Juvenile Records for Background Checks: An Issue That Should Provoke Caution, Skepticism - NRA ILA

AUBURN, Ala. Im a left-leaning Democrat, but on May 24, I voted on the Republican ballot in Alabamas primary election. The states primaries are open, which means Democrats can request a Republican ballot, and vice versa. Alabama is a deep red state, and I wanted some say in electing the officials who will represent me, because they will almost all certainly be Republican.

And have a say I did: Tom Whatley, the state senator for my district, finished behind Jay Hovey by a single vote. (A hearing on Saturday will determine whether Mr. Hovey will be declared the winner.) I voted for Mr. Hovey because I find Mr. Whatleys policies and legacy so abhorrent. If I hadnt cast my vote on a Republican ballot, the two men would be tied.

The walk from my car to the polling station seemed long because I was 38 weeks pregnant, and the heat of our Southern summer was already in full force.

Mr. Hoveys campaign literature describes him as a conservative, Christian Republican whos going to fight for our children, born and unborn, and protect our Second Amendment rights. And the rest of us meaning the nonconservative, non-Christian citizens of our district can go eat glass, as a friend of mine put it.

In 2019, Alabama enacted a near-total ban on abortion. I drove three friends to the Capitol in Montgomery, an hour away from Auburn, where we protested; the ban was blocked because abortion rights are protected federally. Its likely they wont be for long, that soon Ill live in a state where abortion is largely, if not completely, restricted; a state that will also allow, come January, individuals to carry a concealed weapon without a permit.

Thats a bill Mr. Whatley supported, though our county sheriff came out against it. Id like to think Mr. Hovey would not support such dangerous idiocy, but I might be kidding myself.

Mr. Whatley seemed to forget, as a lot of the politicians here do, that he represents me and my family, along with my conservative Christian neighbors. But I think Democrats in Washington have forgotten they represent Alabamians, too.

My thinking on why were in the situation were in where 61 percent of Americans say abortion should be legal in all or most cases, yet that access may soon to be taken away has changed greatly since I moved to the Deep South from Missouri, nearly seven years ago. Democrats have ignored this state, and its neighbors, for decades. I have heard some of them describe people here as ignorant, backward and deplorable. I cant tell you how many times people who live in big, blue cities have blinked in amazement when I tell them I live in Alabama, or that I like it. That surprise is its own kind of ignorance.

And I do like it. I think its valuable to live in a place where everyone doesnt think exactly the same as I do, but beyond that, I love the natural beauty of the South, the friendliness, the food. The stories. The South has flaws, but so does every place. Every time I write an essay about my home I get hate mail. Its less directed at me and more directed at the South a place that I am sometimes told should no longer exist. Its easy to write off an entire region from afar; less easy when you live here.

Theres so much beauty in rural Alabama, and it often abuts terrible poverty. A brilliantly hued hydrangea next to a trailer with blacked-out windows. A row of abandoned old houses next to a field of unmown wildflowers. I do believe that Democratic policies are friendlier to the poor, but how would you know that if you live in a trailer without running water or internet in the middle of a state that has long been out of play for Democratic candidates in national elections? (The victory by a Democrat, Doug Jones, in the U.S. Senate special election in 2017 was anomalous; three years later he was beaten by a Republican former college football coach with no political experience.)

I understand why Democratic presidential candidates wouldnt want to waste time and money campaigning here Alabama feels as if it belongs to Republicans. This is a state with three abortion clinics; as of 2017, there were 113 of them in New York.

The afternoon of the primary in May, my parents came over to watch my children so my husband and I could go to my final ultrasound. I am considered high risk because Im 40 and so during the last weeks of my pregnancy I was closely monitored. There is no doubt in my mind I received excellent care. There is also no doubt in my mind that care for me and other women will be compromised if abortion rights are dismantled. Women would seek out unsafe abortions. Certain forms of birth control might be made illegal, a miscarriage might be dangerously drawn out really, the possibilities are endless.

Your body does not feel like your own at the end of a pregnancy. My stomach was so large it looked otherworldly, especially when the baby inside moved. I was exhausted and swollen. My mind didnt feel particularly like my own, either. My thinking was scattered, my attention span short. This will be my last pregnancy. I feel lucky to experience it.

But that feeling luck, as if Im the witness to some kind of magic, the magic that produces a human from a womb can exist, and does, alongside my belief that its barbaric to deny women the choice of whether they want to carry a child in the first place.

I can believe in the ideals of the Democratic Party while believing that the party has, in certain respects, lost its way; I can become enraged at its recent, hollow attempt to codify abortion rights into federal law. The partys leadership seems to be looking at this moment as a way to improve its chances in the midterms.

I look at this moment quite differently. I think of all the poor women who live in this state, the women who will disproportionately be forced to carry pregnancies they do not want, who cannot afford to travel to the nearest clinic that legally provides abortion. Is it nave to wonder why Democrats at the national level didnt try harder to provide easier access to abortion in red states when they could have? Why dont elected officials truly serve both the people who vote for them and the people who dont? That these questions seem nave, that I already know the answers, doesnt make them any less pressing.

I read the earliest news of the school shooting in Texas while scrolling through my phone in the ultrasound clinics waiting room, where my husband and I saw the first images of our childs face, rendered in 4-D. By the time I gave birth, a week later, the same arguments that always play out between right and left after mass shootings were playing out again. Nothing had changed. Usually I ignore mass shootings, because they seem like the price of living in this country. Its harder to do when the victims are children.

Impossible, one might say.

Anton DiSclafani is the author of the novels The After Party and The Yonahlossee Riding Camp for Girls, and an associate professor of creative writing at Auburn University.

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Opinion | How the Abortion and Gun Debates Look From Alabama - The New York Times