Saturday Morning Open Thread

I'm still participating at a Yale Law School conference on Constitutional Interpretation on Jack Balkin's book "Living Originalism. I wrote about it last week. Some previous posts on the subject: Constitutional Interpretation, Originalism and a Living Constitution and Dred Scott, Originalism and a Living Constitution..

You can watch a live stream of the conference. It should be fascinating.

I'll be part of the panel asking the author questions. Our segment begins at 1 pm:

1:00 pm-2:30pm Lunch: Author's Question Time

A panel of journalists asks the author difficult questions over lunch

Jack Balkin


Justin Driver (Texas, New Republic)
Adam Liptak (NY Times)
Armando Llorens (Daily Kos)
Reihan Salam (National Review Online, The Daily)

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    Another (5.00 / 1) (#5)
    by Abdul Abulbul Amir on Sat Apr 28, 2012 at 02:33:38 PM EST
    "Another" one? (5.00 / 1) (#7)
    by Yman on Sat Apr 28, 2012 at 03:51:23 PM EST
    "Another bloody citizen with a gun story."

    Do you mean in addition to the (on average) 80 firearms deaths or 200 non-fatal injuries that happen daily in the U.S.?


    Yes (none / 0) (#8)
    by Abdul Abulbul Amir on Sat Apr 28, 2012 at 04:08:02 PM EST

    I had one of those nonfatal injuries myself.  Skinned my thumb a bit on the slide.  Actually I have had several.  In truth many.  Often more than one a day.

    Once you have to stoop to using a category like "nonfatal injuries" where the most miniscule injury counts just as much as being turned into a blinded quadriplegic it is a powerful indication of an extremely weak argument.



    And your basis ... (5.00 / 0) (#9)
    by Yman on Sat Apr 28, 2012 at 05:37:52 PM EST
    Once you have to stoop to using a category like "nonfatal injuries" where the most miniscule injury counts just as much as being turned into a blinded quadriplegic it is a powerful indication of an extremely weak argument.

    .. for the argument that the 75,000+ firearms related injuries consists of "miniscule injuries" such as yours is ...

    (cue Jeopardy theme)

    Oh, wait, ... that's right ... it's complete BS.

    Turns out, the CDC data is from hospital data - not the place you would go for a little "boo-boo" - but maybe you're particularly sensitive.

    A firearm-related injury was defined as a gunshot wound or penetrating injury from a weapon that uses a powder charge to fire a projectile. This definition includes gunshot injuries sustained from handguns, rifles, and shotguns but excludes gunshot wounds from air-powered BB and pellet guns.

    Care to try again?

    TW - Amazing how quickly you guys can dismiss the 31,000+ firearms deaths that occur every year.


    One shooter (1.00 / 1) (#10)
    by Abdul Abulbul Amir on Sat Apr 28, 2012 at 06:39:26 PM EST

    One shooter at a recent match got one of those in the CDC count.  A piece of brass jacket splattered off a steel target and penetrated his forearm about 1/4 inch.  He went to the hospital to ensure all the metal got cleaned out and the sheriff was called as it was a gunshot injury.  This was in no way life threatening.  The point remains including far more common minor injuries (to inflate the total) with less frequent life threatening injuries makes that stat basically useless it is used to mislead.

    However, the biggest problem with those stats is it is an example of single entry bookkeeping.  Unless those numbers can be compared to lives saved or injuries avoided by the use of guns they are of little value.  

    The second biggest problem is that those numbers apparently include 100% justified police and other shootings.  For example, assume for the moment that the knife wielder in the linked article would not stop charged the citizen with the gun who then shot him in the leg resulting in Mr. knife falling down and giving up.  Somehow that incident increasing the CDC total is supposed to show how bad civilian ownership of guns are.  Thats utter BS.



    Not remotely "misleading" (5.00 / 2) (#12)
    by Yman on Sat Apr 28, 2012 at 09:24:13 PM EST
    "Misleading" would be, for example, someone claiming that the non-lethal firearms figures include "skinned thumbs".  Now that would be misleading.  Or, as another example, someone changing their tune to suddenly include a "minor" penetrating wound to fit the description, then claiming it shouldn't count in the statistic that's very clear in it's terminology - non-fatal firearms injuries, as opposed to say, life-threatening firearms injuries.

    But if it makes you feel better, you can deduct your buddy's injury from that total.

    BTW - If you want to compare instances where guns are used for self-defense with the number of gun crimes committed, that would work:

    One of the most detailed studies comparing the two looked at the time period between 1987 and 1990.  There were 46,319 gun homicides and 2,628,532 nonfatal gun crimes.  During that same period, there were 258,460 incidents of firearm defense (including police officers). Turns out that gun offenses exceeded protective incidents by more than 10 to 1.  If you want to compare actual shootings, criminal shootings were 7.6 times more frequent than were shootings in self-defense.  The study concluded by noting the obvious -

    "Firearm self-defense is rare compared to gun crimes".

    Cost/benefit analysis isn't going to help you.


    A skinned thumb (none / 0) (#17)
    by Abdul Abulbul Amir on Sun Apr 29, 2012 at 10:27:08 AM EST

    A skinned thumb is absolutely a non-fatal injury.  Your initial claim made no limitation to the CDC's definition.

    Similarly the stats on defensive gun use have no reliable way counting defensive gun use when the weapon is not fired.  For example the link you provided had stats based on a survey.  The survey in question would have missed the example in my initial post unless one of the participants were interviewed.

    So far you have CDC stats that mixes justified and criminal shootings and a survey that relies on memories up to six months old.  

    Gun homicides not only included justified self defense shootings but suicides.  Frankly we are all better off when a suicide chooses a gun and puts no one else at risk than say jumping from a tall building or running out into rush hour traffic.  

    Using stats that mix beneficial and nonbeneficial components does not enlighten, only misleads.


    My "initial claim" was ... (none / 0) (#19)
    by Yman on Sun Apr 29, 2012 at 10:51:42 AM EST
    ... based on a simple internet search.  You were the one claiming that these stats included little boo-boos, a claim which was entirely baseless.  If you want to back up your claims, Google is your friend.  OTOH - If you just want to make them up - like the claims in this last post -, well, ...

    ... "mission accomplished".


    I merely poinird out (none / 0) (#22)
    by Abdul Abulbul Amir on Sun Apr 29, 2012 at 12:50:51 PM EST
    That the plain speaking meaning of "non-fatal injuries" includes scratches and bruises.  When your words have other than the ordinary meaning it is best to make that clear if you want to avoid misleading your readers.

    When speaking of "non-lethal ... (5.00 / 1) (#23)
    by Yman on Sun Apr 29, 2012 at 01:04:56 PM EST
    ... firearms injuries," the only people who think that includes a "thumb skinned on a slide" are those who want to downplay the numbers and make silly, unsubstantiated claims, based on a desire to avoid the facts and attempt to mislead others into doing the same.

    BTW - When the CDC mentions "non-fatal poisoning injuries", they're not talking about someone dropping a bottle of arsenic on their toe.


    Its hatd to say (none / 0) (#27)
    by Abdul Abulbul Amir on Sun Apr 29, 2012 at 06:20:53 PM EST

    It seems on plain reading to refer to any injury caused by a firearm.  If the intention was to refer more narrowly only to shootings, wording to convey that narrower meaning was readily available.  Since they choose not to use the narrower language, there is no reason to assume they intended a narrower meaning.

    Do you think a broken collar bone due to a rifle's recoil is a "firearm injury?"


    No (none / 0) (#28)
    by Yman on Sun Apr 29, 2012 at 06:23:52 PM EST
    Do you think dropping a bottle of arsenic on your toe is a non-lethal poisoning injury?

    No because that is not how poison operates (none / 0) (#29)
    by Abdul Abulbul Amir on Mon Apr 30, 2012 at 06:37:13 AM EST

    And more to the point the same injury would have occurred if the bottle contained the same weight of a non-poison.

    On the other hand a broken collar bone from a rifle's recoil is a result of firing the gun.  If an injury results from firing a gun it is certainly a firearms injury in the ordinary meaning of those words.  


    Btw (none / 0) (#18)
    by Abdul Abulbul Amir on Sun Apr 29, 2012 at 10:31:03 AM EST

    Why deduct only my buddy's injury.  Should we not deduct all of those injures that cannot be shown to be worse?

    Sure - if it makes you feel better (5.00 / 0) (#20)
    by Yman on Sun Apr 29, 2012 at 11:05:03 AM EST
    Just provide some kind of data to support your claim.  You seem to have an issue with common data gathering methods (i.e. surveys) and definitions, though.

    For example, you now claim that the "gun homicide" statistics include suicides.  This is, of course, yet another false claim.  Homicides, by definition, involve the killing of one human being by another human being.  The study does not include suicides since, by definition, a suicide is not a "homicide".  If you include the number of suicides, the number would be faaaaar greater.

    Making such baseless claims does not enlighten, it only misleads.


    Kimdotcom/Megaupload trial (5.00 / 0) (#21)
    by Yman on Sun Apr 29, 2012 at 12:46:58 PM EST
    The federal judge overseeing the US case against Kimdotcom has suggested the case may never make it to trial.  Apparently, the US never formally served Megaupload with papers.

    United States district court judge Liam O'Grady said he didn't know if "we are ever going to have a trial in this matter" after being told Dotcom's file-sharing company had never been formally served with criminal papers by the US.


    the girls gone wild verdict? (none / 0) (#1)
    by zaitztheunconvicted on Sat Apr 28, 2012 at 08:40:26 AM EST
    So, a gal in girls gone wild has sued GGW and won, with a number of weird things going on:

    1. she went to a bar and there were signs posted at the bar indicating that she may be filmed in various ways;
    2. a contractor for GGW pulled down or up her shirt exposing her breasts, but as it was happening, she was saying no;
    3. there was a first trial and the jury sided with the defense;
    4. the judge then ordered a new trial on the basis that the first jury verdict didn't reflect the facts;
    5. the attn for the defense withdraws and it is not clear if he let the defendants know;
    6. there is a 2nd trial and no defense representation;
    7. plaintiff wins at 2nd trial;
    8. ggw now says that they didn't know that they had no defense at the 2nd trial.

    by the way, I did not realize that a judge in a civil case could completely disregard a jury's verdict, and, on the basis that a jury had disregarded the weight of the facts, order a new trial. . .

    It's called "notwithstanding the (none / 0) (#2)
    by oculus on Sat Apr 28, 2012 at 11:48:11 AM EST
    verdictthe verdict."

    A dilemna. Met opera broadcast of (none / 0) (#3)
    by oculus on Sat Apr 28, 2012 at 11:57:11 AM EST
    Wagner's "Die Walkuere"  Or BTD interrogating.

    Lots of Balkin; no interrogating; (5.00 / 1) (#4)
    by oculus on Sat Apr 28, 2012 at 01:26:10 PM EST
    a very fast-talking bunch.  Except the man seated to BTD's left, who is either zoned in on his smart phone or something else.  Liked Balkin's "There is a little known case--McCullough v. Maryland-followed by wry smile by one panelist.  

    Glenn Greenwald/Pres. Obama/ (none / 0) (#6)
    by oculus on Sat Apr 28, 2012 at 03:08:50 PM EST
    Rolling Stone/fed. prosecution re mj:  link

    Would have expected this to get prominent play here.  

    What would be the point? (none / 0) (#16)
    by Mr Natural on Sun Apr 29, 2012 at 10:00:29 AM EST
    Why serve the people when you can serve yourself?

    Getting elected is more important than trivialities like the people's wishes.

    Full employment for sociopathic drug busting thugs.

    A good voter stays suckered.

    "We are the rubes we've been waiting for."

    Kagan v Miranda!  (but she's pro choice)


    Citizen's Arrest! (none / 0) (#14)
    by nomatter0nevermind on Sun Apr 29, 2012 at 02:02:25 AM EST
    It has been suggested that Zimmerman deployed from his SUV determined to see that Martin did not 'get away', prepared to resort to forcible detention.

    I've been looking into the legal implications of such action.

    In Florida kidnapping, Fla. Stat. § 787.01, is unlawful detention for one of four purposes. Roughly, these are ransom or other use of the victim as a hostage, facilitation of another felony, harming/terrorizing the victim or another person, or interfering with government functions.

    Holding a person for police interrogation wouldn't seem to fit any of the four. Unlawful detention for any other purpose (except some special categories which also don't apply) is 'false imprisonment', Fla. Stat. § 787.02.

    False imprisonment is a third degree felony, with a maximum penalty of five years and $5,000.

    "deployed" from his SUV? (none / 0) (#15)
    by Mr Natural on Sun Apr 29, 2012 at 09:52:59 AM EST
    The real take-away from this sordid and tragic episode is that a firearm can give you a false sense of security.

    We can lay some of the responsibility for this at the doorstep of Hollywood.  Turn on the TV and you'll find authority worshipping Cop shows centered on the premise of Cops brandishing guns at every possible opportunity.  Fodder for the fervid fantasies of a wannabe like Zimmerman.


    "Deployed" (none / 0) (#24)
    by nomatter0nevermind on Sun Apr 29, 2012 at 02:21:49 PM EST
    Yes, I chose the word deliberately. I'm sorry if it went over your head.

    Cops brandishing guns at every possible opportunity.  Fodder for the fervid fantasies of a wannabe like Zimmerman.

    There's no evidence of Zimmerman 'brandishing' his gun, much less of his fantasizing about it.

    This seems like more negative stereotyping of those of us who believe in and exercise the right to bear arms for self-defense.

    The real take-away from this sordid and tragic episode is that a firearm can give you a false sense of security.

    Zimmerman had his firearm when he was describing Martin approaching his vehicle. He doesn't sound secure to me.

    My transcript:

    Dispatcher: He's near the clubhouse right now?
    Zimmerman: Yeah, now he's coming towards me.
    D: OK.
    Z: He's got his hand in his waistband. And he's a black male.
    D: OK. How old would you say he is?
    Z: He's got a button on his shirt. Late teens.
    D: Late teens. OK.
    Z: Mmhm. Something's wrong with him. Yeah. He's coming to check me out. He's got something in his hands. I don't know what his deal is.
    D: Now, OK, just let me know if he does anything. OK?
    Z: [Crosstalk] officer over here.  
    D: Yeah, we've got him on the way. Just let me know if this guy does anything else.

    Zimmerman interrupts the dispatcher to ask about the responding officer, something he rarely does.

    Zimmerman doesn't sound at all to me like someone eager to play lone vigilante.


    Cornering Martin (none / 0) (#25)
    by nomatter0nevermind on Sun Apr 29, 2012 at 03:56:58 PM EST
    Continuing from an earlier open thread.

    Mary 2012:

    In this particular case of "cornered", ABC might've used the term for economy of words. IOW, it might be Zimmerman stood between Trayvon and Ms. Green's home, i.e., blocked his path.

    'Martin's path was blocked' is just one more word than 'Martin was cornered', and the same number of syllables. A lot less dramatic, though.

    I never saw the segment myself

    I linked it in the parent post. Here it is again.

    Do you know how Dee Dee actually described/ recounted this part of what happened?

    I don't know what Dee Dee told ABC News.

    Prosecution investigator O'Steen took a statement from Dee Dee. The probable cause affidavit presumably reflects what Dee Dee told him. The word used there is 'confronted'.

    O'Steen's partner was asked about 'confronted' in the bond hearing. CNN's 'dirty words' is probably an error for 'thirty words'.

    O'MARA: Zimmerman confronted Martin, those words. Where did you get that from?

    GILBREATH: That was from the fact that the two of them obviously ended up together in that dog walk area. According to one of the witnesses that we talked with, there were arguing words going on before this incident occurred. But it was between two people.

    O'MARA: Which means they met. I'm just curious with the word confronted and what evidence you have to support an affidavit you want in this judge to rely on that these facts with true and you use the word confronted. And I want to know your evidence to support the word confronted if you have any.

    GILBREATH: Well, it's not that I have one. I probably could have used dirty [sic] words.

    O'MARA: It is antagonistic word, would you agree?

    GILBREATH: It could be considered that, yes.

    O'MARA: Come up with words that are not antagonistic, met, came up to, spoke with.

    GILBREATH: Got in physical confrontation with.

    O'MARA: But you have nothing to support the confrontation suggestion, do you?

    GILBREATH: I believe I answered it. I don't know how much more explanation you wish.

    O'MARA: Anything you have, but you don't have any, do you?

    GILBREATH: I think I've answered the question.

      * * *

    DE LA RIONDA: And sir, you were asked about the next paragraph here that Zimmerman confronted Martin and a struggle ensued and you were asked a lot about what "confronted" means. If Mr. Martin was minding his own business and was going home and somebody comes up to him and starts accusing him (inaudible), wouldn't you consider that a confrontation?


    DE LA RIONDA: That is, Mr. Martin didn't turn around and start -- he was minding his own business and Mr. Zimmerman's the one that approached Mr. Martin, correct?

    O'MARA: Let me object at this point you honor. Though great leeway is given and I guess this is cross-examination, the concern is that he's talking now about evidence that is completely not in evidence.

    LESTER: What's the objection?

    O'MARA: The objection is he is presenting facts that are not in evidence to the witness.

    LESTER: Sustained.

    DE LA RIONDA: Why did you use the word "confronted" sir?

    GILBREATH: Because Zimmerman met with Martin and it was compiling the facts that we had along with the witness statements of the argumentative voices and the authoritative voice being given from one of the witnesses and then the struggle that ensued that came from several witnesses.

    DE LA RIONDA: But prior to that confrontation, Mr. Martin was minding his own business? Is that correct?

    O'MARA: Again, your honor, we point to -- and this is not in evidence and he cannot present it that way to the witness.

    LESTER: Sustained.