text:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
3D Printers and Guns
Friday, May 10, 2013
3D Printers and Guns
Gerard N. Magliocca
The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues. The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect.
The 2A claim sounds like an as applied challenge that can be addressed in various ways, including requiring guns to be created by authorized dealers and compelling interests overriding such a claimed right to dangerous weapons that Heller says can be banned.
Also, note the breadth of support for this particular ban, Cheney himself coming around from a previous opposition (he was one of the few people voting against the ban). http://www.nytimes.com/1988/05/11/us/house-vote-backs-a-plastic-gun-ban.html
So, this is one of many regulations that some stereoytpical "gun banners" aren't the only ones supporting.
The overall issue of 3D printing is an interesting technological concern with broad implications in many areas.
"Is it clear that the possession or manufacture of a plastic gun is unlawful?"
Actually, it's clear that it IS lawful. Depending on state law, of course, you can manufacture a gun for your own use, so long as you don't sell it. If you want to sell it you have to go through some rigamarole to obtain a serial number to put on it.
I think the real fear here is that 3D printing makes the futility of gun control just too obvious to bear. It's been futile all along, somebody with a pipe and a hack saw can make a zip gun that's just as good as this printed gun, and an enormous number of people either own or have access to the shop facilities needed to make firearms to the highest quality on the market.
Gerard, your "The blogging hiatus starts now. " is an old familiar refrain. I expect "violations," including on your honeymoon. Some advice from a long-married man: Don't take a 3D printer along on your honeymoon.
Notice, Shag, that you're analogizing printing a gun, a victimless act, to murder, a decidedly NOT victimless act.
Gun control, like all prohibitions of victimless conduct, is essentially futile, because law enforcement is fundamentally reliant, (In a free society, anyway!) on victims reporting crimes to the police. Where the conduct only involves people who want it to happen, nobody reports it to the police, and the police are hamstrung.
Of course, they typically don't give up, they just start resorting to law enforcement techniques with AREN'T suitable to a free society, like secret informants, widespread wiretapping, abusive conduct during searches. You see it in drug enforcement, you see it in gun control, and I guess it's soon to come to a 3D printer near you, when the government tries to take control over what you can print with one.
Too bad Gerald went on vacation too early to comment on this:
IRS admits targeting conservatives for tax scrutiny in 2012 election
But I'm sure the usual people will insist this administration never has any scandals.
So Brett may be suggesting that Gerard should take a 3D printer on his honeymoon, especially if he honeymoons in Texas, in case he runs into Cody Wilson, law -student-anarchist. Maybe Gerard should avoid Texas - and South Carolina.
Maybe a remake of "The Graduate" is in order, as "plastic" (no, not credit cards) is the anarchist weapon of choice. Query: Did Justice Scalia specifically reference plastic weapons in his efforts by dicta in Heller to pre-empt the slippery slope argument?
Maybe someone should work on software for a 3D printer to make a "bobble-head" of Brett. That would not be lethal, unless from laughter.
The actual "targeting" of conservatives has not been shown. Brett's selective concern for disparate impact is duly noted.
"Gun control, like all prohibitions of victimless conduct"
Guns have no victims? So, selling a gun to a ten year old, a mentally unfit person or a felon is a victim-less crime? Use of point of sale checks requires secret informants and wiretapping?
Who are these people who btw claim Obama is an angel and there is nothing wrong going on?
I'm actually very interested in hearing our answer to joe's question, but perhaps in a different form. Are you opposed to laws that would provide some penalty to knowingly selling a gun to 1. a ten year old, 2. a mentally unfit person or 3. a felon?
What if a guy comes up to another guy and says "Man I hate my wife, I wish I had a gun so that I could kill her right now, hey, you've got guns, would you sell me one?" If the second guy sells him a gun and the first guy does something bad with it, should the second guy be penalized?
I think the idea is that joe's list are persons that we think are less an obvious potential public danger than my example, but not by much, and so some deterrent, or perhaps responsibility, should be attached to it. What do you think?
And for those disagreeing with Brett, can you not see some serious downsides to making the actions of many, many people currently into victim-less criminal offenses? The vast majority of people who own, say, handguns, or high capacity magazines, or even 'assault weapons' would never commit a crime with them. By outlawing them we create a large class of victimless criminals...
"The actual "targeting" of conservatives has not been shown."
The IRS came out and admitted that they targeted for audits any non-profits that had "tea party" or "patriot" in their name. I suppose in your world this had no political dimension. I would suggest that you not be an ass, but it's clearly too late.
"Are you opposed to laws that would provide some penalty to knowingly selling a gun to 1. a ten year old, 2. a mentally unfit person or 3. a felon?"
At the state level only,,
1. Not particularly opposed, if we make an exception for emancipated minors.
2. What does "mentally unfit" mean? If the definition involves objective criteria and a jury of your peers, protection comparable to a felony trial, no objection. If it licenses some dude to take away your civil rights on his own judgement, screw it.
3. If felonies were still especially serious crimes, I would not object to this. Considering that felonies range from homicide to forgetting to ditch your pocket knife before boarding a plane, again, screw it.
I thought name calling was Shag's department, though he uses cutesy names. The very article linked says:
"Lois G. Lerner, the IRS official who oversees tax-exempt groups, said the "absolutely inappropriate" actions by "front-line people" were not driven by partisan motives."
The NYT story notes:
Staff members at that office singled out the terms "Tea Party" and "patriot," she said, but not out of political bias; it was "just their shortcut." Only about a quarter of the 300 cases flagged for scrutiny were Tea Party-related, she said, but she called the singling out of those groups "absolutely inappropriate and not the way we should do things."
We simply don't know all the details here and the suddenly influx of new groups along with changing political funding rules in 2010-12 does not to me warrant some clear-cut assumption of just what happened here.
I will repeat myself -- when I hear people on the left complaining about the Administration on drones etc., the idea that nothing wrong at all is said by whom? Each administration is likely to have some "scandal."
As to Mr. Whiskas, my concern is the extreme nature of Brett's comment where "gun control," which to him includes Manchin/Toomey Bill, addresses "victimless crimes."
I understand and respect the concern for some broad gun ban, which is simply unlike to pass. And, if it does, it would be at best prospective. But, gun regulations repeatedly are of not that caliber.
Why only the state level? Why is interstate commerce in guns not a concern of the feds, e.g.?
But, the answer is appreciated, since it underlines that Brett supports "gun control" -- certain people, with safeguards, are not allowed to get guns, certain limits on guns, certain "controls" are in place. This is in part because guns are not "victim less" even on the level of say pot or gambling.
Why only at the state level? Because I don't accept the tendentious definition of "interstate commerce" which has been developed to let Congress regulate everything. Congress has the authority to regulate actual instances of commerce which cross certain specified boundaries. Not everything which under hypothetical situations might have some slight "effect" on commerce which happens to occur in more than one state. Which is what 'interstate commerce' is currently taken to 'mean'.
However, Congress DOES have the authority to regulate as though it were a state is certain carefully defined places. D.C., non-state territories, land purchased with the permission of a state legislature... In those constitutionally specified places, you may apply my opinion of what states can do to the federal government as well.
"This is in part because guns are not "victim less" even on the level of say pot or gambling."
No, guns are inanimate objects, they are as victimless as knives, potatoes, sofas. They just sort of sit there doing nothing, on their own. Some of the acts people may engage in with them can generate victims, and those acts are as subject to the general police authority as similarly victimizing acts with baseball bats or tire irons would be.
I take gun ownership, and the incidents of it such as manufacture, sale, storage, practice, to be as subject to the general police authority (Which, with the noted exceptions, the federal government lacks.) as, say, printing presses. For legal purposes, substituted "printing press" for "gun" in any argument, and the conclusion should be the same: Just as the 1st amendment does not preclude making it illegal to hit somebody over the head with a printing press, it doesn't preclude making it illegal to shoot someone, but you can't use the illegality of hitting somebody with a printing press as a basis for depriving people of them, or restrictively regulating features which have non-abusive applications.
Minors and the genuinely incompetent lack full expression of many civil liberties, not just gun ownership. The fifth amendment, of course, makes it clear that you CAN lose civil liberties via due process: "nor be deprived of life, liberty, or property, without due process of law". But as I noted, while this has traditionally been restricted to felonies, indeed the usual distinction between felonies and misdemeanors has been whether a loss of civil liberties can result, the class of "felonies" has been bloated with acts of an absurdly trivial nature, so one can no longer justly say that "felonies" taken as an undifferentiated class should have any particular consequences. Indeed, it is an outrage that many acts nominally 'felonies' are illegal at all.
I want gun ownership to be treated as the real, full, civil liberty it clearly is made by the 2nd amendment, and I want all civil liberties to be treated seriously, not to be stripped of people for acts of a trivial nature, or through process only nominally due such a serious thing.
Brett, the long self-declared Second Amendment absolutist, is starting to show cracks on gun control. Perhaps Brett is somewhat receptive to Justice Scalia's pre-emptive slippery slope challenge dicta in Heller, some of such dicta that includes, per Wikipedia::
"In regard to the scope of the right, the Court wrote, in an obiter dictum, 'Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'"
Regarding limitations on minors, Brett sees no reason to limit "emancipated minors." Of course unemancipated minors have a right to self-defense; but perhaps they lack the intellect for understanding the role of guns in our society, despite or because of computer games available to them. Besides, an unemancipated minor child, such as a 4-year old can apparently rely upon his/her parents who can, according to Brett, not be limited in the number of handguns and certain other arms in their arsenal to provide self-defense in the home. Hopefully such parents will take steps to avoid misuse of their arsenal by their 4-year old that might result in serious injury or death to him/her, the parents and perhaps neighbors. [Note: In Newtown, a 20 year old had access to his mother's arsenal.]
As to convicted felons, Brett seems to see the need for a scale of really, really serious felony convictions, before limiting their access to guns under the Second Amendment. Query whether spousal abuse injunctions/convictions are serious enough in Brett's mind? Of course even felons have a right to self-defense, especially in their homes. [Note: So far in Heller and McDonald SCOTUS has acted only on handguns in the home on the basis of the individual right of self-defense under the Second Amendment. Consider that under FL's "Stand Your Ground" statutory redefining of self-defense, two drug dealers who are armed may get involved in a turf battle with the turfor killing the turfee in self-defense, or vice versa.]
More to come on Brett's take on the meaning of "mentally unfit" under Scalia's dicta.
Shag, I am no more or less absolutist about the 2nd amendment, than I am about the rest of the Constitution: Any civil liberty may be regulated under the general police power, to the extent it is exercised in a fashion which directly harms others. As I said, freedom of the Press does not cover beating somebody over the head with a printing press.
It does, however, cover telling somebody how to go about beating somebody; The Anarchists' Cookbook, the five volume "How to Kill" series from Paladin Press, are protected by the 1st amendment, and so, I think, is the distribution of these files. I see no relevant difference between a CNC file and a book on how to make the same thing.
The act of printing the gun, OTOH, would fall under the 2nd amendment.
Finally, it is properly up to a jury of one's peers to determine whether a crime is of sufficient magnitude to justify depriving you of a civil liberty. If the government chooses not to afford you that jury trial, they've made the determination in the negative by default, but the deprivation really ought to arise in the sentencing phase.
You, OTOH, are doubtless quite comfortable with depriving somebody of their civil liberties because they forget to leave their pocket knife at home before departing on an airplane trip, to name but one trivial "felony".
The First Amendment Speech/Press clauses may prohibit censorship, permitting one to "shoot off his mouth" subject to consequences later, such as libel, etc. Perhaps Brett's view on the Second Amendment is similar: don't prevent anyone from getting a gat subject to consequences later, such as homicides.
Both Heller and McDonald limit the "civil rights" aspects of the Second Amendment to handguns in the home, subject to Scalia's dicta limitations in Heller (and blessed in McDonald). Brett's many comments at this and other blogs on the Second Amendment and gun control go well beyond Heller and McDonald.
More later on the meaning of "mentally unfit" noted by Brett, including social media and blog statements as possibly suggestive of a state of mind of a person. [Blog statements may differ somewhat from social media, but some volunteer on blogs personal information that might involve state of mind and whether one is "mentally unfit" for purposes of Second Amendment limitations per Scalia's dicta. Note how AFTER an atrocity, including the Boston Marathon bombings, Newtown, Aurora, Oklahoma bombing, etc, the authorities and the media focus on such. Should there be such a focus BEFORE in case of a background check for Second Amendment regulatory purposes? Or do "civil rights" justify
shoot first and ask questions later"?]
Brett, what about the Internet and mails? Is that state area too? Alleged extremes in one direction should not be answered by them in the other direction.
These two examples are clear but interstate commerce of guns are a well known thing. In fact, it is so well known, that interstate travelers being protected is a subject of concern on the gun friendly side. That is, if Sen. Manchin is supposed to be not gun friendly.
A nuclear bomb by its lonesome might be "victimless" under that definition though even there guns have been known to malfunction or ammo to cause problems 'on its own.' Guns are not "victimless" because they are not just left there. They are actually used by people, at times incorrectly or by people w/o a right to have them.
There are differences between the 1st and 2nd Amendment. Young minors have the right to buy books. But, contra to your rhetoric, when pressed, show that you do support "gun control," that is you support various regulations, be it the state or feds, on guns, that 'control' their use in various ways.
You are correct that you are not an 'absolutist,' you just at times knee-jerk that way. As you recognize, "full civil liberties" are regulated. There are various regulations of speech. The are regulations of voting.
There are regulations of guns.
The 3D gun in question was not all plastic. It had two metal parts.
Does the Congressional bill banning manufacture of plastic guns intend that no part of a gun may be plastic.
What Cody needs to do now is make a Transformer of plastic that converts into a gun once you add a steel firing pin and maybe a steel barrel.
Consider Brett's view:
"2. What does 'mentally unfit' mean? If the definition involves objective criteria and a jury of your peers, protection comparable to a felony trial, no objection. If it licenses some dude to take away your civil rights on his own judgement, screw it."
and how a background check, especially a quick check, might function. Brett suggests there must be an adjudication of "mentally unfit" by a jury. Consider how long it takes to start and finish such an adjudication process, that might be precipitated by acts such as the Boston Marathon Bombers, Newtown, Aurora, Oklahoma bombing, etc. Brett would apparently wait until there is a big bite of the apple (shoot first ...) and then a long trial, or many investigations if the perp is killed. Determining who is "mentally unfit" is difficult, but due process does not always involve a full adjudication. Evidence may suffice for purposes of gun regulation: reasonableness. Consider a persons own statements on social media, including blogs, that might reflect whether he/she is "mentally unfit." This would be a "No-no" for the NRA and conservatives. But what about the victims and their families? There are Second Amendment insurrectionists out there, and anarchists with their 3D printers ready to make undetectable plastic guns.
What about the victims of your "due process light"? All the people who get stripped of their rights for trivial reasons? Well, I guess they don't bother you, because you want people to be victimized in that way.
No, you're not bothered at all about all the people who plead guilty to misdemeanors in the past, only because paying the fine was cheaper than hiring a lawyer to contest the charge, and then, years later, suddenly got stripped of their rights after the fact when the Lautenberg amendment passed. Man, is that ever ripe for review, now that the Court has admitted it's a civil right they got taken away, not some privilege.
I thought the Supremes in Heller just expressly ruled that pistols are protected Second Amendment arms and that prohibitions of them violate the Constitution?
The "printed" pistols are the functional equivalent of of a poorly made single shot, wheel lock pistol. There are literally thousands of publications discussing how to build your own firearms which are far superior to this novelty.
It is telling that the first knee jerk reaction of the authoritarians who infest our government was to ban the new "printed" pistol.
I actually agree with Bart that the alarm over the fuss over what is effectively the opposite of the high capacity, rapid fire firearms that gun control proponents tell us are the only real concern, and I agree with Brett that the expansive list of felonies today and the 'soft' science of mental illness are frightenly broad and/or not exact enough to be the basis for denying fundamental rights.
Having said that, I think Heller allows for this to be banned: it's certainly not a weapon commonly used by the law abiding.
Sometimes a plea to a misdemeanor is to avoid the risks of a trial on a felony charge that might carry more than a fine.
But what about spousal abuse, is such a minor matter to Brett?
"it's certainly not a weapon commonly used by the law abiding."
By that reasoning every new model of gun could be banned the moment it was introduced, before it could be adopted widely. It is simply a single shot pistol, while not the most common choice of gun, scarcely unheard of.
I believe Heller simply established a default rule that, if a firearm is already in common use, it is presumptively beyond banning, no further analysis needed.
What about the right to trial by jury, is that such a minor matter to Shag?
I'm simply pointing out that, at the time many of these guilty pleas were entered, it was well understood that pleading guilty to a misdemeanor meant nothing more than a fine, it had no further consequences. To alter that after the fact to loss of a civil liberty?
Only people who don't like the civil liberty in question, and want people to lose it, could find that reasonable.
Mr. W: "it's certainly not a weapon commonly used by the law abiding."
Brett: By that reasoning every new model of gun could be banned the moment it was introduced, before it could be adopted widely.
Single shot firearms are widely owned by the citizenry. The only thing novel about the "printed" pistol is how it was made.
The Scalia test will have problems when the next generation of weapons comes out and the prohibitionists try to ban them at birth.
Terminator: Phased plasma rifle in the 40 watt range.
Shop owner: Just what you see here.
The right to trial by jury in criminal cases is an important right. Plea bargaining is a means of lessening such jury trials. There are problems with plea bargaining in providing fairness and justice, especially to indigent defendants who lack the funds to hire well qualified attorneys who do not have case overload as do many public defenders. Without plea bargaining, the justice system could take longer to resolve matters and at greater expense. Many defendants benefit from plea bargaining. Many defendants can be victims of plea bargaining where a well qualified lawyer might get a not guilty verdict. The justice system is not perfect.
Many spousal abusers are not brought to justice, with the result that more spousal abuse follows. Guns are frequently involved with spousal abuse. That is a Second Amendment regulation concern. So let me repeat:
"But what about spousal abuse, is such a minor matter to Brett?"
Not when it actually happens. Which a guilty plea to avoid the cost of mounting a defense is scarcely real evidence of.
Guilty pleas are essential to the function of an out of control legal system, which would collapse under the burden of actually trying everybody it accuses of a crime. We'd be better off if they were abolished, and the legal system had to prove the guilt of everybody it wanted to convict.
But these are not traditional single shot weapons, they are weapons that are made mostly of plastic and which a printer creates...It's silly to think they are not new in some important sense. Heck, even their designers describe them as revolutionary.
"The Scalia test will have problems when the next generation of weapons comes out and the prohibitionists try to ban them at birth."
I can't agree more. It's a pretty silly test.
Can you think of other rights that one loses for life upon a felony (or as has been pointed out, in some cases, a misdemeanor) conviction?
Mr. W: But these are not traditional single shot weapons, they are weapons that are made mostly of plastic and which a printer creates...It's silly to think they are not new in some important sense. Heck, even their designers describe them as revolutionary.
Glock made the first mass production "plastic" semi-auto pistols back in 1982 and hundreds of thousands are owned by law enforcement and civilians.
The only thing revolutionary about the "printer" pistol is how it was made. Functionally, it is crap.
BD: The Scalia test will have problems when the next generation of weapons comes out and the prohibitionists try to ban them at birth."
Mr. W: I can't agree more. It's a pretty silly test..
Scalia adopted the commonly owned by civilians test because the alternative and superior test based on the text was that all small arms suitable for militia service were protected and that would include real "assault weapons" like automatic M-16s and AK-47s. Scalia was not willing to go that far.
Yeah, the important thing to understand about Heller, is that it wasn't, on the Court, a debate between those who wanted to uphold the 2nd amendment, and those who wanted to erase it.
It was a debate between those who wanted to erase it, and those who were content to replace it with a less offensive to (some) modern sensibilities right. The 2nd amendment actually being upheld was never in the cards.
Brett responds to my question:
"But what about spousal abuse, is such a minor matter to Brett?"
with this weak, skirting [pun not intended]:
:Not when it actually happens."
If the question had addressed murder, rape, home invasion, burglary, etc, would Brett have had a similar response? There seems to be something subjective, personal involved here, perhaps related to some of Brett's comments at other posts unrelated to this post. Spousal abuse, domestic abuse, is a serious problem. Perhaps Brett is suggesting that the abuser cops a plea to a lesser charge even though not guilty in the abuser's mind. The data on such abuse, and how it continues, with bad results is extensive. After the fact, earlier episodes of such abuse not properly addressed surface, indicating that unless addressed the abuse would not stop and would escalate. Weapons are often involved in such disputes. Police are limited in arrest powers without observation of the incident or clear signs of its aftermath. Police don't like to get involved in domestic disputes. The abused spouse may be cowed by terror from actually proceeding with a complaint. Should such abusers have access to weapons? Might spousal abuse indicate that the abuser is mentally unfit? Brett can continue to tip-toe on this - but it seems personal, not objective.
The reason I put it that way, is that nobody ends up with murder on their record due to pleading guilty because they'd rather pay a fine than lose wages attending a trial. But many people have, from long ago, "spousal abuse" on their record for precisely that reason.
The reason I put it that way, is that the standard of proof, and expectation of due process, is remarkably different between misdemeanor spousal abuse, and the sorts of acts which once rated the name, "felony".
Why, you can lose your right to keep and bear arms based on a simple restraining order, with no benefit of a real trial at all!
So is it personal and objective? There is some due process involved with a restraining order. Of course, restraining orders often work, but sometimes they don't, with more violence resulting.
In addition to spousal/domestic abuse, there is the abuse recently reported in the Armed Forces. There seems to be a violence of culture. Perhaps a study might be done on "GUNS, GENES AND GENDER: Violence and Angry White Men." Does the Second Amendment work to reduce that violence?
Our SALADISTA (FKA our yodeler) can read the mind of Justice Scalia in Heller apparently, with his indication that the true text of the Second Amendment should have permitted a right to military style arms and not just handguns in the home, presumably based upon the Second Amendment's introductory Militia clause. That's trying to have it both ways on the collective/individual right dichotomy. Perhaps if Scalia had his druthers, that might have been the result. But perhaps Scalia might have lost a majority with that. As for Scalia's dicta on potential Second Amendment limitations, my view is that he was attempting to pre-empt slippery slope argument, perhaps also to avoid losing a majority. That dicta has been out there for about 5 years (3 years in McDonald) and there has been much commentary, including comments at blogs such as this, but SCOTUS has not had a chance to follow up. Hopefully the Justices are following this commentary and realize that the slippery slope is real. Keep in mind that both Heller and McDonald were 5-4. SCOTUS will have to proceed with all deliberate speed to address violence that Heller and McDonald may lead to with the NRA and other gun yahoos.
BD: Scalia adopted the commonly owned by civilians test because the alternative and superior test based on the text was that all small arms suitable for militia service were protected and that would include real "assault weapons" like automatic M-16s and AK-47s. Scalia was not willing to go that far.
shag: That's trying to have it both ways on the collective/individual right dichotomy.
The collective rights fiction is that state governments enjoy the right to keep and bear arms.
In fact, the militia of that day and our is an armed citizenry suitable for being called up by the state or federal government for military duty.
The People's right to keep and bear arms ensured that armed citizenry is available for duty.
The fact that this is one of the reasons to protect the People's right to keep and bear arms suggests strongly that the protected arms should be suitable for military service.
Wouldn't it also suggest that the armed citizenry be subject to state regulation (the "well regulated" & militia part)? I would think that could cover things like safe storage laws, background checks, and other provisions (so long as they don't disarm the citizenry).
If the State of CO has a militia today within the meaning of the Second Amendment as our SALADISTA (FKA our yodeler) claims, I assume the State of CO maintains records of its members and of how such modern-day militia is well-regulated. Are the members of this modern-day State of CO militia volunteers or does the State of CO designate who shall be members and require them to purchase arms and well-regulates them by holding training sessions periodically, including checking their weapons to make sure they are functional. Presumably such current-day militia of the State of CO has arms of particular designations and not mere handguns, bows and arrows, dirks, etc. Perhaps a public records request is in order addressed to the Governor of CO, citing as authority the State of CO's illustrious constitutional scholar, our very own SALADISTA.
By the Bybee [expletives deleted], such modern-day State of CO militia might serve to protect CO's recreational pot users from interference by the Feds..
Brett might read E.J. Dionne's WaPo column today "Raising the political heat on opposition to gun control," especially the portion relating a domestic abuse restraining order and the "alleged abuser's" steps following the issuance of the order.
Mr. W: Wouldn't it also suggest that the armed citizenry be subject to state regulation (the "well regulated" & militia part)? I would think that could cover things like safe storage laws, background checks, and other provisions (so long as they don't disarm the citizenry).
Only to the extent of enacting rules of discipline under the Militia Clause.
Once again, well-regulated in the military context of the time simply meant disciplined.
The militia clause grants Congress the power to enact laws to discipline the militia when they are called into federal service and they enacted the UCMJ.
I said the states. And disciplined suggests rules and such, so I'm thinking that as long as the people are not disarmed rules that related to having a well regulated group of people that could be called forth to assist in times of rebellion and invasion should be allowed. For example, requiring gun owners to take safety and proficiency courses and pass them to own arms or certain safe storage rules at the least.
I have to wonder what restrictions places like Switzerland or Israel place on the keeping and bearing of the arms their citizen-soldiers keep. That kind of thing.
Mr. W:
The states have a concurrent and subordinate power to discipline their militias when called to service, but not to abridge the fundamental individual right to keep and bear arms, which the Second Amendment guarantees against states as well as against Congress.
When the militia is called up for service, the state may tell the citizen soldier that he or she may only carry standardized government approved arms while on duty, but does not have the power to tell a citizen not on duty that he or she may not own and carry their protected personal arms.
Where do you get that from? If the militia=the people and their arms, then the state can regulate/discipline the people themselves (for example, they could recquire them to drill regularly or meet PT requirements), so why could they not regulate/discipline in certain ways their keeping/bearing of arms (as long, of course, as they don't infringe their right to keep and bear their own arms)? It seems to me that mandatory safety and/or proficiency training should be OK, as well as safe storage laws.
I'm not sure of the textual basis of your claim that the state's regulation of their militia only reaches to "when called into service" unless by that you mean that whenever the state would require anything militia related that would be an instance of being 'called into service.' It certainly can't mean that the state can only discipline militia when they are fighting an emergency; that would mean they could not drill them absent one and that would undercut the entire idea of a well regulated body...
Don't misunderstand me: under what I'm thinking of here I would think courts would have a duty to make sure that proposed 'regulations' are actually militia-related and not pretexts for traditional gun control measures.
In thinking about our discussion the following problem occurred to me: a seeming conflict between the right to keep and bear for the purpose of their being a citizen's militia and the right to keep and bear for the purpose of individual self defense.
IF the militia just was the citizens who brought their own firearms to muster, and so the Founders wanted to ensure the people had the right to have arms they could then use when mustered, then what happens when the firearm some citizens keep/bear is one the state or local militia finds to be less than useful or even counterproductive to the regulation of their militia (let's stipulate that they actually have a rational basis to oppose the firearm on militia related grounds, no pretexts)? What if they want everyone to be very proficient in, say, M-16s and they feel that keeping and bearing other arms only distracts from the imperative need for greater (or exclusive) familiarity with that arm. Could they distribute M-16's but bar the keeping and bearing of other arms? If they cannot then don't we get a situation in which the express textual purpose of the right finds itself subordinate to a non-textual one? And if yes, isn't that, well, odd?
Mr. W: If the militia=the people and their arms, then the state can regulate/discipline the people themselves (for example, they could recquire them to drill regularly or meet PT requirements), so why could they not regulate/discipline in certain ways their keeping/bearing of arms (as long, of course, as they don't infringe their right to keep and bear their own arms)?
The militia is the armed citizenry called to service and can be disciplined when formed.
Attempting to use the prefatory clause of the Second Amendment to argue that Congress and the states can impose military discipline on the civilian population merely because they can be called to duty as militia is a rather heavy lift.
I give you points for originality. I have never heard that argument before.
Can only be disciplined "when formed?" That can't mean only when called into action to fight an emergency, because that would mean no drilling.
If they could call regular drills I can't see why they can't prescribe certain activities apart from formal drills. Of course it would have to be at least rationally related to military needs and if it conflicted with other explicit constitutional provisions (for example, the exercise clause could not force religious pacifists to train in arms).
This is consistent with the Militia Act of 1792 which required males between a certain age to get certain arms and to regularly train.
"Could they distribute M-16's but bar the keeping and bearing of other arms?"
How exactly would barring the keeping and bearing of other arms contribute anything to the goal you cite, once the militia members had been armed with the firearms the government wanted, and required to train with them?
I think you're missing a key point here, in understanding the 2nd amendment: It is a right, and rights are not expressions of trust in government, they are intended to bar government wrongdoing. To understand any right, you need to understand what kind of wrongdoing it is meant to bar.
The founders thought that a well regulated militia was necessary to the security of a free state. But they were not at all confident that the people running a state would WANT it to be free! And so they wrote the 2nd amendment, to protect the militia against a government which wanted to foreclose the possibility of a militia being raised by disarming the people.
As I've suggested before, it's as though you were concerned that arsonists might take over the government, and set out to destroy the fire department under the guise of regulating it. So you guaranteed the right of people to own and train with firefighting equipment, so they could constitute a volunteer fire department in an emergency even if the government wanted everything to burn to the ground.
So, don't envision the government mandating M-16s for the militia, and barring random arms unsuited to the purpose. Envision the government mandating potato guns for the militia, and baring functional firearms precisely because they ARE suitable for militia duty.
Don't envision a government trying to do the right thing, envision one trying to do the wrong thing. Because that's what the Bill of Rights is all about, it would not exist were it not for the assumption the government might sometimes want to do wrong.
Mr. W:
You have call-up the militia to train them.
When they are on duty, UCMJ applies.
When they are off duty, the UCMJ and any other discipline the states enact does not apply.
Yesterday I finished reading Stephen M. Durden's "Textualisms," available at:
The download consists of 43 pages that include 26 pages of Footnotes on numerous law review articles on textualism. [The small typeface was a problem and at times required my use of a magnifying glass.] Most of the noted articles were published in the past decade. The goal of the author was not the merits of textualism; rather it was to point out what seem to be perhaps a hundred or more versions of textualism, described by various adjectives. The author obviously has a sense of humor in assembling these adjectives used by legal scholars. But one adjective that the author did not include was: "simple-minded" in describing textualism, which brings me to this recent statement by our SALADISTA (FKA our yodeler), who claims to be a textualist:
"Once again, well-regulated in the military context of the time simply meant disciplined."
This is simple-minded. The text of the Constitution does not define "Militia." Rather, one has to review extensive pre-Colonial, Colonial and Revolution history to understand the term "Militia" at the time of the Articles of Confederation, the Constitutional Convention culminating in the adoption of its Constitution in 1789, the adoption of the Bill of Rights in 1791, followed by the Militia Act of Congress shortly thereafter. Of course, the military history thereafter is relevant in evaluating the role of the Constitution's "Militia" references over the years since to the present.
Our SALADISTA focuses on citizen Militias, separate and apart from the Militia of a state (or subdivision thereof), waiting to be called by the State into action. Perhaps this is sort of like a dormant Commerce Clause, for a dormant Militia clause under the Second Amendment. Who are members of these citizen Militias unregulated by the State? What brings them together? What are they threatened by? Could they be insurrectionists-in-waiting? Are citizen Militias equal opportunity providing?
Going back to Colonial and post-Colonial days, the Militia fought against Native Americans who had long been here before European settlements. In the Slave Colonies/States, the Militia addressed actual or threatened insurrections of slaves (who had been brought there in chains). [Note: Our SALADISTA has forthrightly declared that slavery was malum in se even before the Civil War Amendments.] The Militia back in Colonial and post-Colonial days fought against people of color, both native born and those brought here in chains.
So what are the goals of our SALADISTA's citizen Militias today as they await being called by the State? Or will they wait?
"The founders thought that a well regulated militia was necessary to the security of a free state. But they were not at all confident that the people running a state would WANT it to be free! And so they wrote the 2nd amendment, to protect the militia against a government which wanted to foreclose the possibility of a militia being raised by disarming the people."
Brett, I'm pretty sure the 2nd Amendment did not originally apply to the states, so it wasn't codified to keep state governments from ruining or undermining the militia, but the feds (the "State" mentioned in the 2nd is the new Union, state run militia's were assumed when referencing the "militia").
Think of the Militia Act of 1792: it ordered citizens of a certain age to acquire certain arms for militia service. It certainly didn't "call up" the people to whom that applied to do that, they were supposed to do it to be prepared for when they were called up.
So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firarms training as well?
To your list of groups the militia was used to suppress might be added radical anti-tax groups (Shay's Rebellion)...
While my objective was not to prepare a list of what Militias were used for, Mr. W's addition of Shay's Rebellion, might have us consider in our current day and age competing citizen Militias in a State, say the Mile Hight State (of mind) of CO, and there is a need for the State to call forth under the imprimatur of the State one of these citizen Militias to suppress one or more of the other citizen Militias. How can the State be sure that the citizen Militia it so calls upon is well-regulated? What steps - and in what timeframe - would the State have to appropriately take to assure its citizenry that the citizen Militia chosen is well-regulated? Maybe Gubernatorial candidate Tom-Tom Tancredo can campaign on citizen Militias with his mentee (our SALADISTA) as his advisor.
"So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firearms training as well?"
It could. The 2nd amendment was clearly consistent with the state setting a floor for gun ownership and familiarity. Just not setting a ceiling. Setting a ceiling could never further the cause of a well regulated militia, and had considerable potential for frustrating that cause.
The 2nd amendment was, of course, adopted to restrict federal wrongdoing. But it was modeled after state level protections, and NOW applies to the states thanks to the 14th amendment.
Shag, as I was pointing out back in the 90's, if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers.
"Setting a ceiling could never further the cause of a well regulated militia, and had considerable potential for frustrating that cause."
A state couldn't have a rational, military related idea that people keeping and bearing firearms other than the ones they wanted the people to be proficient in would be counterproductive to their regulation of their militia?
"if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers"
Or, as they did with the militia in 1787 (largely seen as the impetus for the Constitution and the Militia Act of 1782) they could call them out to crush these non-sanctioned militia...You have to watch original intent, it can come back on ya!
Mr. W: Think of the Militia Act of 1792: it ordered citizens of a certain age to acquire certain arms for militia service. It certainly didn't "call up" the people to whom that applied to do that, they were supposed to do it to be prepared for when they were called up.
So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firarms training as well?
Ordering citizens of a certain age to acquire certain arms for militia service was almost certainly unconstitutional, widely ignored and eventually abandoned. I would not use this as a model to argue for further requirements on the civilian citizenry.
PT and firearms training was conducted after the militia was formed.
"PT and firearms training was conducted after the militia was formed."
It seems bizarre to say that they could have a drill twice a year in which they could compel PT and training but not require continuous PT and training. People can get pretty out of shape/practice between Spring and Fall, which could be a serious detriment to having a "well regulated militia."
But of course there is a way around this even if one were to concede your point: declare drills once a week all year rather than twice a year with PT and firearms training. Especially in this age of continuous war under the AUMF such a thing seems rational!
" ... as I was pointing out back in the 90's, if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers. "
would have led to unconditional surrender to anarchy, unless the officers assigned were correctional officers..
By the Bybee [expletives deleted], just where was Brett pointing this out back in the 90's? [I'm building a dossier.]
Mr. W:
The theory borne out by the Revolution is that, while the militia is a joke when compared one-to-one with a professional army, it is extremely difficult to conquer a continental size country with an armed citizenry without an extremely large invasion force.
The British really had no chance of holding the colonies with the roughly 30,000 troops they sent. This is the number of police necessary to keep order in a largely peaceful large city. As soon as the British left an area, it reverted back to American control.
"A state couldn't have a rational, military related idea that people keeping and bearing firearms other than the ones they wanted the people to be proficient in would be counterproductive to their regulation of their militia?"
Amendments in the Bill of Rights exist to preclude actions the government might have some reason to undertake. What would be the point of an amendment barring some action the government would never, ever, want to undertake?
You think the government never has a rational reason to want to censor political speech? To conduct random searches without a warrent? Confiscate property without compensation?
I'll say it again: A bill of rights is not an expression of trust in government. It is a protection against a government that wants to do the wrong thing. You really have to be willing to conceive of a government deliberately setting out to do something it SHOULDN'T do, to understand any of the Amendments.
Don't think about what the government might reasonably want to do, that is handled in the form of powers. Think of how it might abuse power, that is the subject matter of a BIll of Rights.
How might the government abuse the power to tell people they can't own that weapon, can't train with it? Maybe they could reduce the militia to a small politically reliable group, with the general population disarmed, and so defenseless before it? The "select militia" the founders worried about?
THAT is why the power to arm the mililtia does not imply the power to tell people they can't own this, or train with that. Because it can be abused, and the founders were more concerned with the abuses it would enable, than any hypothetical beneifts that would be foregone.
"You really have to be willing to conceive of a government deliberately setting out to do something it SHOULDN'T do, to understand any of the Amendments."
But some of the Amendments are clearly meant to protect some government from other governmnent (think about the 10th or the 11th, or as many have argued what the
2nd was originally meant to do [protect state militias from the feds]), and I'm talking about those state and local governments.
"Don't think about what the government might reasonably want to do, that is handled in the form of powers. Think of how it might abuse power, that is the subject matter of a BIll of Rights."
Well, sort of. But the provisions also suggest all kinds of powers (think of the due process clause).
Remember in the thought experiment I'm suggesting the government would have to distribute weapons to all militia aged citizens and could never, ever, leave them without arms.
Right, that's why it says "right of the People", because it's all about state power. Yes, some people have argued that; They started arguing that right about the time the federal government decided that it DID want to infringe the right of the people, and needed some excuse about why it could.
In your thought experiment, the government might chose to distribute potato guns to everyone, and then mandate they not substitute actual firearms. Or, closer to the real world, give it's soldiers large magazines and selective fire weapons, while trying to prohibit both to the people.
And the 10th amendment refers to both the states AND the people, and treats them as distinct entities: "are reserved to the States respectively, or to the people."
They used the word "states" when they meant states. "the People" NEVER is reference to the states.
Speaking of building a dossier, those interested may Google:
The militia movement + Brett Bellmore
for more of his views.
By the Bybee [expletives deleted], it seems that Justice Scalia in his Heller dicta did not specifically reference the militia movement. Perhaps Scalia was unaware of it.
I don't disagree with the thrust of what you're saying. Yes the BoR is meant to hold back the government, I was simply saying that at times it holds back the feds to protect other governments which powers it recognizes (state) and even in its checks it recognizes government powers (the due process clause).
I'd also like to clarify something about my thought experiment: I agree that while the 2nd recognizes a state's militia rights in the prefatory clause it recognizes a distinct RKBA in the people themselves, and so what I've said is that the government could only bar keeping/bearing certain arms if it does not leave the populace without means to keep/bear arms. So I said that in the case of them wantint to maximize proficiency in a certain arm by barring keeping/bearing of others they would have to give the arm of choice to the people and a court would have power to review to ensure that the RKBA of the people is not infringed and that their be at least a rational military relationship of the policy. That would take care of the potato gun scenario.
I guess it comes down to what "shall not infringe" is taken to mean. I take it to mean something more than "shall not utterly obliterate", and think Tench Coxe probably had a better feel for the meaning of the 2nd amendment than Chuck Schumer.
Those like Sen. Manchin also think it means more than shall not obliterate. The guy you called some sort of traitor. So, that doesn't quite work. Chuck Schumer also is a lot easier to stereotype here than red state types who don't take your strident position on the subject.
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Some believe that there are only four Rolling Stones, but then some say there's a fifth: keyboardist Chuck Leavell. He's been on tours with the band for more than 30 years — but that hasn't been his only gig. At 20, he was asked to join The Allman Brothers Band. Since then, he's spent his career playing with famous artists, from touring with George Harrison to recording with Aretha Franklin and John Mayer.
"Music, for me, has always been about colors, emotions and feelings rather than notes on a page or chords," Leavell says.
Leavell is currently playing with The Rolling Stones as part of the band's 50 & Counting tour.
The Rolling Stones are Mick Jagger, Keith Richards, Charlie Watts and Ronnie Wood. And some say the fifth Stone is Chuck Leavell. He's been in the band's keyboard chair for more than three decades. His nimble fingers bring to life songs like "Honky Tonk Women."
GREENE: Those fingers are moving. That's Chuck Leavell playing with The Rolling Stones during their current "50 and Counting Tour." The band performed in Washington, D.C. last night and Leavell stopped by our studios to talk about touring with the Stones and a whole lot more.
Chuck Leavell, welcome to the program.
CHUCK LEAVELL: Dave, it's so good to be with you. Thanks for the invitation.
GREENE: Those fingers are really moving.
LEAVELL: Well, I try to keep them that way. Yeah, man.
GREENE: Tell me why the piano. How did you get interested in that instrument?
LEAVELL: Well, you know, the fact is my mother taught me how to play. And she played for family enjoyment. She wasn't a teacher or professional or anything. You know, I'd tug on her skirt it say, Momma, play me something on the piano and she would. And, oh, I was just fascinated. You know, I loved watching her hands go up and down the keyboard. And she would do a very interesting thing. She would say, Well, Chuck, what would it sound like if there was a terrible storm outside? You know, and I'd rumble down on the low end - roll-roll-roll - you know. And, Chuck, what would it sound like if you hit a home run?
So music for me has always been about colors, emotions and feelings, rather than notes on a page or chords.
GREENE: You knew really early on that you wanted to make music a career. And by age 20, you were asked to become part of The Allman Brothers.
LEAVELL: I had moved to Macon, Georgia and was looking for opportunity because there was a record label there called Capricorn Records. It was kind of climbing up the ladder over a period of a couple of years. And then members of the Allmans had found out about me. And this is after the tragic death of Duane Allman. You know, I think it was interesting and probably a good thing that the band did not look to try to replace Duane with another guitar player because you just don't replace Duane Allman.
GREENE: Irreplaceable.
LEAVELL: Irreplaceable. And to go in a different direction and to, you know, put a piano in that role was, well, certainly good for me. (Chuckling)
And so, this brought a whole other texture of sound into the band - you know, having a piano. So you look at a song like "Jessica," which has kind of become a signature song for me, and still enjoy hearing today, you had the blend between the Hammond B3 and the piano and guitar.
GREENE: Well, I'm glad you enjoy hearing it because we wanted to play a little.
LEAVELL: Cool.
GREENE: So after The Allman Brothers, Chuck Leavell, you played with a fusion group called Sea Level. And then not too long after that you encountered The Rolling Stones for the first time. What was that meeting like?
LEAVELL: Ah, it was amazing. You know, Sea Level had actually broken up and I kind of went home despondent one day, talking to my wife, Rose Lane. And I said, Rosie, you know, phone hadn't been ringing, career is not exactly taking off. Maybe I should just not worry about music for a while. And she listened very patiently.
LEAVELL: And then she said, Well, that's all fine and good, Chuck. But guess what? The Rolling Stones called you today.
GREENE: You're kidding. That's amazing.
GREENE: You're thinking that your music career might be over. And she says, oh by the way, The Stones gave you a phone call.
LEAVELL: Absolutely true.
GREENE: Well, now you're the musical director. I mean, I've read you say that it's your job to keep Mick, Keith, Charlie and Ronnie - the members of The Stones - happy. What does that mean?
LEAVELL: You think about what Mick Jagger is doing up there. You know, he's got so much on his mind when he's performing, so there's...
GREENE: He's like one of the most active performers in the history of rock 'n' roll.
LEAVELL: Absolutely, you know, and so there are points in the song where, uh-oh, where are we, or is the bridge coming up or is the solo coming up? And if anybody has any doubts, they can look at me and I can give hand signals or signals with my eyes to say, you know, yeah, we're going here or we're going there.
GREENE: I love this image of Mick Jagger sometimes being so into the crowd and the moment that, I mean, he gets a little distracted and needs to kind of look over at you to get his place back.
LEAVELL: Well, it's an enjoyable role for me. But I mean let's face it. You know, musically, from the piano standpoint of view, there are some songs that I get to stretch a little bit on. But it's not the kind of band that offers a piano player a tremendous amount of improvisation.
GREENE: You do get some ribbing, though, from the other members of The Stones for sort of your other life. You do conservation work. You're a tree farmer. Tell me how that all came about.
LEAVELL: Well, I like to say it's all my wife's fault.
GREENE: I like to say that a lot, too.
LEAVELL: Blame it on the wife. By the way, Rose Lane and I will be celebrating our 40th anniversary...
GREENE: Congratulations for that. That's really cool.
LEAVELL: Thank you. So the story is that unbeknownst to me I was dating the farmer's daughter. So as I spent time with the family, walking the woods, seeing the passion and dedication that they had for the land, it began to rub off on me. And then, in 1981, her grandmother passed away, left her a parcel of land and it became our responsibility to carry on this heritage of stewardship.
So the more I studied up on forestry, the more interested I became. And, of course, the direct connection is that where does this marvelous instrument that's given me my career and so much joy, where does it come from - from the resource of wood.
GREENE: Listening to you talk about the woods, you have a solo album that really harkens to this influence. It's called "Back to the Woods."
LEAVELL: "Back to the Woods." The theme of the album is a tribute to pioneering blues piano players.
GREENE: This is a song called "I Got to Go Blues."
LEAVELL: Yeah.
LEAVELL: By the way, the vocalist on that track is a good friend of mine, Bruce Hampton from down in Atlanta, Georgia. And it was a joy to have him make a guest appearance on the record.
GREENE: Chuck Leavell, you are in sort of a unique role in music. You were in The Allman Brothers and The Stones, you're "The Fifth Stone," quote-unquote. I mean do you like that role? Or looking back, would you have preferred to kind of just have one identity, one band.
LEAVELL: The joy of my career has been dancing with all these different partners. You know, I spent two years with Eric Clapton. We did the "Unplugged" record together. Played on George Harrison's last solo tour, which was - are you kidding me - you know, to work with George Harrison? And, you know, done session work with Aretha Franklin, recently on John Mayer's last record.
So that's been the joy of my career. You learn something from one setting, you apply it to another. And it's just been tremendous for my career.
GREENE: Well, if you see Mick Jagger playing on stage, and you see him look back to kind of take a look over...
GREENE: ...and find his place in the song, he'll be looking at the man I'm talking to, Chuck Leavell.
Thanks so much for joining us.
LEAVELL: Oh, great to be with you. Thank you.
GREENE: Chuck Leavell, he's keyboardist for The Rolling Stones. He's also co-founder of the environmental site, Mother Nature Network.
It's MORNING EDITION from NPR News. I'm David Greene.
And I'm Renee Montagne. Transcript provided by NPR, Copyright NPR.


text:
Orchestral and Choral works > Orchestral works
Johannes Brahms
Serenade no. 2 in A major op. 16
Editor: Michael Musgrave
14.95 $
Urtext Edition, Study score, paperbound
Pages: 106 (XVI, 90), Size 17,0 x 24,0 cm
Order no. HN 9858 · ISMN 979-0-2018-9858-2
In his Serenade no. 2 op. 16, composed in 1858–60, Brahms keeps to the usual, smaller, scoring for this genre, using pairs of winds and horns as well as low strings (no violins!). His friend Clara Schumann was "delighted" with the work, but the public reaction was restrained and even Brahms himself was not happy with some details. Thus 15 years after the first performance he rigorously revised the serenade. We are now publishing this definitive version from 1875 that was "new, revised by the author" as a study score with the musical text from the Brahms Complete Edition.
« BackOrder this item now directly via our partner Hal Leonard»
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text:
Barry M Cosmetics is a UK cosmetics company that have so many different makeup products that are bright, eye-catching, and really pigmented makeup.
I am in love with their "Dazzle Dusts", which are finely-milled pigments with amazing color-payoff. They are just so gorgeous and so rich in color. And I am loving the cute little jars it comes in, perfect for travel and just the right amount. The Dazzle Dusts are like your everyday mineral pigments, same texture and feel, most are satin (sorta matte with some sheen/shimmer), the Fine Dazzle Dusts are described as "22 brilliant shades of loose pearl colour that have been cleverly blended with ultra fine, diamond like glitter flecks to dazzle". These are more glittery than the regular dazzle dusts and do have flecks of glitter as you can see from "Black Purple".
The only flaw? It's expensive if you don't live near the UK. I really wish some of his products were available here in the US, like in a drugstore. The pounds currency is a lot more than the US dollar, so shipping and the items in itself are expensive when you convert it. All this (pictured) costs about $70 with taxes and shipping (three of them were gifts from a friend), so you can imagine that 5 jars was already $60. And usually when I do a big haul on other mineral makeup sites for pigmented eyeshadows, it only costs me about $40 USD.
(swatches done dry, no base)
A closer look:
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Friday, August 8, 2008
Barry M Cosmetics (www.barrym.com)
33 comments
- Anonymous said...
VERY pigmented =) i can't wait to see a look with them!
- August 8, 2008 at 11:54 AM
- Jenna said...
Kingfisher is beeyoootiful!
- August 8, 2008 at 12:04 PM
- Ethereal Prey said...
zomg! Super sparkly glittery shimmery color! Looks super awesome! Do a EOTD and blow us all away! I'm excited to see what they look like!
- August 8, 2008 at 1:09 PM
- Beth said...
I've actually only just gotten into these myself and I'm English! The brand has been around for ages, but somehow has only just gotten under my radar.
From your post, I think they're only selling 1/3rd of the shades in the US as I'm sure there are more on the UK site.
I've got about 9 of them, some stores here will run a 3 for £10 promo (so thats about 3 for $20) and its too good to pass up!
I'm still fairly new to any eyemakeup technique more advanced than "smudge over eyelid with ring finger" so these are a teeny bit of a challenge for me. Lately I've taken the easy way out, mixed them with a little Smashbox shadow converter and worn them as eyeliner with a really neutral eyeshadow and they look so pretty.
I'm glad they've made their way across the pond, they're such a great product!
- August 8, 2008 at 1:11 PM
- Anonymous said...
So gorgeous!
I really like the black purple.
- August 8, 2008 at 2:08 PM
- Anonymous said...
i hve been reading your blog! it's awsome!i did a review on Barry M a while back because I was so in love with them. unfortunately it's not available to us either.
i do find the pigments a little on the sheer side. i am quite surprised to see the picture you did with it applied dry. did you do a couple of coats?
here is the link to my review.
thank you
- August 8, 2008 at 2:14 PM
- Alyssa said...
Wow! They're so pigmented and gorgeous!
- August 8, 2008 at 2:16 PM
- Anonymous said...
OoO i had come across this site a few days ago looking for some bright eyeliners i heard they're really great.... the only con SHIPPING!! it sucks but im soooo dying to order from barrys
- August 8, 2008 at 2:16 PM
- Anastasia said...
I live in the UK and haven't yet tried these! I adore incredibly bright eyeshadows, my favourite so far are the Beauty From the Earth minerals - incredibly pigmented and I find they go on easier than my MAC.
You'll have to let me know which other shades take your fancy and I'll pick you up a couple when I next go to Boots. They're dirt-cheap compared to UD and MAC here!
- August 8, 2008 at 2:36 PM
- Anastasia said...
I know they're expensive to Americans, but I'd be happy to send you a couple free, or a bunch of samples from any shades I try. Call it a thanks for your awesome blog teaching me a ton about make-up :]
- August 8, 2008 at 2:52 PM
- Anastasia said...
Don't be silly! I'd be happy to :]
I'll try to take some swatches of them, too, and see if my local Boots has the shades you fancy.
I'm delighted to see a comment from you on my crappy blog, by the way =O I feel all honoured.
Do they have the Body Shop in the US? If not, I'll try to swipe some samples from there, too (they tend to let you scoop any of their skin products into little sample jars).
- August 8, 2008 at 3:08 PM
- Anonymous said...
i don't have swatches of them and can't swatch for you as i have given all of them away on a whim! i got mad because i can't get them here and i don't shop online. and it was a hell getting CP and asking friends bringing them back from the UK so in the end i just told myself enough is enough. LOL
but quite a few girls on Makeup Alley do have the real life pictures too. go check them out if you wish.
(i didn't just stop your blog. i am reading it everyday now.) i love your site!
- August 8, 2008 at 3:55 PM
- Connie said...
so pretty! I love how the colors have so many hues. Look forward to see you using em :)
- August 8, 2008 at 5:13 PM
- mayaari said...
wow, those colors look so vibrant! can't wait to see what looks you come up with for these items!
- August 8, 2008 at 7:25 PM
- Lily said...
i'm salivating over winterberry! hahaha
- August 8, 2008 at 8:03 PM
- sarahPUFFY said...
are you serious? $70? I can get Barry M here in Louisiana on the cheap. Thank god for the boardwalk.
- August 8, 2008 at 8:39 PM
- Bliss said...
Nice haul,now i regret not buying some when i was in UK lol.
- August 8, 2008 at 8:49 PM
- Askmewhats said...
I have seen youtuber Panacea using this and it looks promising! great you were able to test them! I won't Lemm for them..US is far UK is farther lol
- August 8, 2008 at 10:09 PM
- Anonymous said...
Wowwww Winter Berry looks amazing, very unique!!
- August 8, 2008 at 10:18 PM
- Tracy said...
The colors look gorgeous! Too bad they're more expensive for us. =(
- August 8, 2008 at 11:21 PM
- Maya said...
acctually, these are quite cheap from some webshops here in sweden. i´ve got 6 of them and i´m in love! the shades you´ve got are truly amazing, i´m gonna get some of them too :)
- August 9, 2008 at 1:22 AM
- Anonymous said...
I love Barry M Duzzle Dusts! The colors are beautiful and they are so pigmented!
- August 9, 2008 at 4:43 AM
- blue_orchid_on_the_rock said...
I love barry m! One of my favourites is blue gray. The latest collection contains oyster grey. I love that colour as well! It's grey with a pink frost. It's really beautiful for a smokey eye look.
- August 9, 2008 at 5:15 AM
- purple snowflake said...
hey.. really pretty colors and pigmented.. good for dramatic make up looks..
can't wait to see you using them to create an amazing look ^___^
- August 9, 2008 at 8:06 AM
- Ling said...
I really like mint green. So pretty!! I can't wait to see your EOTD with them. ;)
Btw, I emailed you already! =D
Thanks Vanessa!
- August 9, 2008 at 5:42 PM
- *~k~* said...
pretty colors :)
- August 10, 2008 at 12:37 AM
- sophia said...
The black purple is really awesome!!! All the colors look really shimmery and pigmented. Great haul!!
- August 10, 2008 at 2:42 AM
- Christiana Divine @ Memoirs of A Shopping Addict said...
i know what you mean about buying cosmetics from the UK. :( i REALLY want these two palettes from the brand Sleek Cosmetics... they're the i-divine palettes (ironic i know. LOL.) one in the original and the other in chaos... but i can't find a single site that sells it or will ship to the US and if i did i'm pretty sure it'd be expensive. LOL. sucks!
- August 11, 2008 at 1:13 AM
- MakeupByRenRen said...
i know panacea uses these a lot in her vids...i love how the colors are so multi-faceted...too bad about that dang exchange rate! maybe they'll expand to the US
- August 11, 2008 at 6:45 AM
- Gracie said...
I've been seeing Barry M for a very long time but never thought of trying them as everytime I pass by the counter, it's always surrounded by teenagers ha ha ha! However, I've sent my friend a few to try. I can't wait to see your FOTD in them :)
- August 11, 2008 at 10:55 AM
- Nic Nic said...
for all the time i actually lived in UK, i never though about getting Barry M pigments for myself LOL. now im finally not in UK.. i actually wanna try them out haha, thanks to your swatches! very pretty!
- August 12, 2008 at 8:07 AM
- LadyJane said...
The swatches are beautiful! Too bad I can't see myself forking out that much for minerals :(
- August 12, 2008 at 9:32 PM
- christy. said...
Black purple looks crip!
- August 13, 2008 at 6:50 PM


text:
The Indexer is the Real Winner Workshop
Sonoma County Genealogical Society Joins the 1940 U.S. Census Community Project
S.C.G.S has joined forces with genealogy societies and organizations around the country as part of the 1940 U.S. Census Community Project. The initiative aims to publish a free, online searchable name index of the 1940 U.S. Federal Census after images of the census are released to the public in April 2012. This online index will be free forever, offering family history researchers a rich genealogical data set for their ongoing use. Three leading genealogy organizations, Archives.com, FamilySearch International, andfindmypast.com, launched the initiative at the end of last year, and the project is already engaging volunteers to help provide this invaluable resource to family historians around the world as soon as possible.
The index created by the project will allow the public to easily search every person found in the census and view digital images of the original census pages where he or she is listed. The highly anticipated 1940 U.S. Census is expected to be the most popular U.S. record collection released to date.
"The 1940 Census is attractive to both new and experienced researchers because most people in the United States can remember a relative that was living in 1940. It will do more to connect living memory with historical records and families than any other collection previously made available," said David Rencher, Chief Genealogical Officer for FamilySearch.
The 1940 U.S. Census Community Project is also receiving support from leading societal organizations like the Federation of Genealogical Societies, National Genealogical Society, and Ohio Genealogical Society, as well as other societies around the United States.
Go to www.the1940census.com/society and register to participate with our society. Simply select Sonoma County Genealogical Society-CA on the profile screen when creating your account. Every new person indexing with our society gets us closer to milestones that qualify us for incentives provided by the sponsors of the project, so sign up today!
For more information contact your 1940 S.C.G.S. Project Administrator. Trisha Bomar at email@example.com
Also watch the 1940 U.S Census Community Project video on YouTube!


text:
I'm writing in response to the Rev. Darlene K. Ryniec's Nov. 26 letter, "Give up the hate."
She calls President Barack Obama's re-election a victory. I pray that our nation will survive the next four years.
She apparently has no idea who this man is, and being at the level she is makes me wonder a great deal about her.
Fox News is not unreliable; Ryniec's sources are unreliable.
No one has been duped except the likes of her.
This president never should have been elected, and he has shown why. He's a smooth-talker, and a talker is all that he is.
There's no shame in being successful. If Ryniec thinks Mitt Romney was hiding things, she hasn't seen anything yet with Obama.
The allegations against Obama, as she calls them, are true.
Ryniec said she was shocked at the lies that were told. The letter she wrote was full of them.
Obama didn't get re-elected because he's so good. He got re-elected because of the give-me people and all the corruption and illegal voting.


text:
20 December 2010
A Christmas Thought
Each comment on this blog stands for someone who has crossed my path sometime. And while you may not be aware of any special link, just meeting you has changed my path, a lot more than you could imagine! Whether I have known you for many years or a few hours, in some way you have been a part of shaping things I do here on More Than Burnt Toast. Now that Christmas has come, I realize anew, the best gift life can offer is meeting people like you.
Have a wonderfully joyous holiday season whatever it might bring.
49 comments:
Thank you, Valli, for being such a wonderful part of my blogging experience this past year. I've learned from you and value your friendship. Very best wishes to you and yours in this holiday season and the coming year.ReplyDelete
Wonderful words!ReplyDelete
Happy holiday, Merry Christmas and all the very best for the New Year!
So glad we found each other's blogs and then got to know each other. All the best to you and Lil Burnt Toast in 2011.ReplyDelete
You're right... we influence each other even from so far away, don't we? Happy holidays and all the best for 2011.ReplyDelete
That's a beautiful thought Val! And I'm sure you have touched a lot of people's lives. It's an honor being your online and foodie friend :)ReplyDelete
You're the best Val, so glad to have come to know you! merry Christmas to you and your whole family.ReplyDelete
Merry Christmas Val. Your efforts are so much appreciated. I hope you have a lovely holiday with lots of tasty treats.ReplyDelete
You are so right...it has been a wonderful experience to meet so many folks...the world truly is flat. Happy holidays to you and your family.ReplyDelete
I'm so happy to be your blogging friend, Val. I look forward to each and every visit. Who could know how much blogging would affect our lives when we started out. Truly a blessing.ReplyDelete
Merry Christmas.
You, too, have enriched my blogging experience. Your spirit and wonderful food brighten my life each day. Hugs and blessings...MaryReplyDelete
Nice post. Wish you a Merry Christmas Val.ReplyDelete
Awww this makes me kinda teary. In a good way.ReplyDelete
Val, thank you so much for being so wonderful all the time. I wish you and your family the happiest of holidays!ReplyDelete
Even though we only met briefly one night last year, I still remember the great time we had. All the best to you and your family over the holidays Val. Cheers from down under!ReplyDelete
It's very touching of you to consider us this way...likewise Val ;o)ReplyDelete
The happiest of Holidays going forward,
Beautiful post! Wishing you a very Happy Holiday!ReplyDelete
And a very Merry Christmas to you as well! I hope you have a blessed holiday. :)ReplyDelete
Truly lovely sentiments. Merry Christmas. May it be lovely and bring you good things in spirit.ReplyDelete
Thank you, Val you have been a visitor to my site from the beginning and you have touched my life in a special way too.ReplyDelete
Have a fantastic holiday with your family!!
Merry Christmas to you! Wishing a great holiday season!ReplyDelete
I have loved reading your blog over the years. That can be quite a connection in itself to always look forward to your next post.ReplyDelete
Have a wonderful Christmas with lots of joy and love and great food!
Aw, you are a special person Val! (and your blog also.)ReplyDelete
I wish you and your family the most wonderful Christmas and look forward to your posts in 2011! xx
Val, you are one of the sweetest people I know and I'm grateful to have been able to wine and dine with you ! Merry ChristmasReplyDelete
Merry Christmas to you! You have been blogging for so long and I have loved following your blog for years!!ReplyDelete
Very lovely!ReplyDelete
Wishing you a wonderful and safe Holiday :)
Here's wishing you a blessed and merry Christmas. I hope that you and your loved ones have an incredibly special time together. Best wishes and enjoy the festive times ahead!ReplyDelete
Such beautiful words Val! Happy to have met you and followed each others lives through our blogs! All the best to you and your family this holiday season!ReplyDelete
What a nice and sweet message. Have a great and happy holiday season filled with anything you wish for!ReplyDelete
enjoy the holidays, val! may your leftovers be plentiful. :)ReplyDelete
- AnonymousDecember 22, 2010
What a wonderful message, Val! Happy holidays to you!!!ReplyDelete
What a sweet message, Val! Sometimes, I think I am taking the building of these "cyber" relationships too seriously - as they do become "real" in the sharing of ones everyday life through food and learning through recipes... who to ask what to... etc..ReplyDelete
Your post has definitely comforted me today, as I feel the same way.
I was going to send you a private message - but there is so little time - this time of year... with the new business we have started (baby steps now, but I will be retiring from teaching, soon), we will be focusing a great deal on tours and travelling. The cooking classes are just a belief of mine that an opportunity exists that has not been taken advantage of yet, locally - to get these young amazing cooks highlighted! And, it appears I may be right! But, we will be looking to tour nationally and internationally - and as you live in one of Canada's most special places, you may be interested in helping me find great culinary experiences in your area (as I definitely value your opinion) and/or teaching a class yourself whenever we tour to you! Something to think about! If I think it would be fun for me, I know it would be for others!!
PS: MERRY CHRISTMAS to you!!!ReplyDelete
And may your holiday be filled with warmth and love and happiness.
- AnonymousDecember 22, 2010
Dear Val:ReplyDelete
So happy to have met you adn able to spend time togetehr in San Fran. You are a person one should hold dear...and I do.
Mery and Happy!
Happy Holidays, dear Val.ReplyDelete
Thank you dear Val. Happy holidays to you now and always.ReplyDelete
What a lovely message, Val! Hope 2011 brings us to visit each other more and enjoy what we have to offer. Thanks for the love so far. Have a fantastic and beautiful Christmas!ReplyDelete
- AnonymousDecember 23, 2010
Have a great holiday val! May the New Year bring even more to your table and blog.ReplyDelete
You're so right about bloggers. Some of you have been my biggest supporters in this time of sadness for me.ReplyDelete
Val, I wish you a very merry Christmas filled with wonderful food, family and friends. Happy holidays to you and your family.ReplyDelete
Be good 'cause Santa Claus comes tonight.
Merry Christmas!ReplyDelete
Hope you have a wonderful holiday season with lots of great food.
You're right- for bloggers, links, comments and postings are how we share and connect. I often wish blogs could be a little more two-way...
Keep up the good work and all the best for a happy New Year!
Merry Christmas Val. I have enjoyed our friendship here! I wish you the best!ReplyDelete
Val, what a lovely tribute to the family of food bloggers who share one thing in common-- our love and appreciation of food. We do speak the same language, no matter where we live! I'm so glad that I got to meet you in person. Wishing you all the best for the coming New Year. I hope that you get that new camera that you long for! xoxoReplyDelete
Evocative and just-so-beautiful Val. Merry Christmas to you, and warm wishes for a fabulous 2011. HUGS!ReplyDelete
Wow! What a gorgeous photo!ReplyDelete
And a very lovely post. It's rather amazing how important all of my virtual blogger friends have become to me... And very nice when we connect through our comments....
I hope you had a wonderful Christmas - and do have a Happy New Year!
I'm so glad you are in my life, Val! :-) Wishing you the happiest new year and much love and joy to make your heart glad. :-)ReplyDelete
It has been a pleasure getting to know you through your blog this year Val. Thank you for your support. I wish you a happy and prosperous New Year!ReplyDelete
What gorgeous decorations! I hope you and your family had a wonderful Christmas, Val.ReplyDelete
You are a blessing to all you meet. With your boundless enthusiasm and bright encouragement, you enrich the lives you touch.
I hope this coming year is the best yet!
It has certainly been my pleasure to meet you online. You are an amazing, creative woman and your posts always bring a smile to my face. Merry Christmas and a very Happy New Year.ReplyDelete
A Very Happy 2011 to you and your family Val xReplyDelete
Welcome to my home. Thank you for choosing to stay a while and for sharing our lives through food. I appreciate all your support, comments, suggestions,and daily encouragement.
This blog uses comment moderation therefore SPAMMERS, SELF-PROMOTERS and ADVERTISERS will be deleted.


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text:
Supreme Court considers gay marriage: The scene and key players
The Supreme Court this week heard arguments on California's Proposition 8, which bans gay marriage, and the Defense of Marriage Act, which denies federal spousal benefits to same-sex couples. The justices could rule narrowly or extend marriage rights nationwide. Here are images from the scene and some of the key players who took the stage as the cases unfolded. Timeline: Gay marriage across the U.S. | Full coverage: Prop. 8 | Cheat sheet: DOMA and Prop. 8
Copyright © 2018, The Morning Call


text:
Board will get a look at Joppa Hill farm's roof after tiles removed
BEDFORD - The Educational Farm at Joppa Hill has reached an agreement with the town that will allow its board to inspect the barn's ceiling once the town has the roof's tiles removed, in order to see if it can afford to make the repairs, said Jo Hendry, secretary of the farm's board.
Hendry said some of the dispute with the town over signing a long-term lease was a result of uncertainty about the level of repair work that needs to be done.
"We couldn't do something until we could see what we had," she said.
According to Hendry, the board was hesitant to sign any agreement that they felt had unrealistic time restraints, including an agreement made in January after a meeting between the two parties that the farm's board ultimately refused to sign.
That agreement required repairs to be made to the barn within about six months, and contained other requirements the farm's attorney said were nearly impossible to meet.
"We wanted very much to move forward," Hendry said of that meeting, "but there were some things we weren't sure we were physically able to promise, and we needed to have everybody there to discuss it."
Hendry said there is much to celebrate at the farm, despite the barn being closed to the public since this summer.
"Even though we had to put up a tent, we ran the best summer camp we've ever had," Hendry said.
The mission of the 35-acre farm is "to increase public awareness of open space, sustainable agriculture and the environment by operating a working farm, providing interactive educational programs and promoting firsthand experience through community involvement," and Hendry said many of the farm's activities directly support that mission.
The farm has hosted 660 campers and over the years, employed 32 camp counselors and counselors-in-training, and more than 700 students visited the farm for field trips, Hendry said.
Many groups and organizations volunteer at the farm, including scouts, students, local businesses and the board itself, Hendry said.
The farm is also a community meeting space for groups, including the Animal Rescue League and the Bedford Land Trust.
"There are a lot of great things happening at the farm that aren't in the public light," Hendry said.
Fundraising continues to be a focus, and though the summer camp is a main source of revenue for the farm, "There is nonstop fundraising," Hendry said.
Hendry said the goal of the board is to work with the town going forward to continue with the farm's mission.
"We care as much as the town officials do about what happens there," she said. "We work so hard - we want to do what it takes to keep it going."
If the farm chooses to move forward with the repairs, Town Manager Jessie Levine said the town will begin negotiations of a long-term lease that would go into effect only if the barn repairs are made.
"I am glad that EFJH is publicizing its activity over the last few years and reporting back to the community how it is using town property for public benefit," she said. "In any future lease, the town will include clear, enforceable expectations for performance and benefits to the community, not only relating to use of the property for maximum public benefit, but maintenance of the property for maximum agricultural protection and preservation."