Challenge to Barring Medical Marijuana Licensees from Buying Guns Loses in Federal Court

Long-awaited and alas bad news from the case of
Wilson v. Holder
,
which I reported on
all the way back in December 2011.

Rowan Wilson, then a Nevada-based medical technician in
residential care homes, was not able to buy a gun from a licensed
dealer who was personally acquainted with her and knew she had a
state medical marijuana patient card.

This is because the dealer knew of Bureau of Alcohol Tobacco
Firearms and Explosives (BATFE) rules that stated “if you are aware
that the potential transferee is in possession of a card
authorizing the possession and use of marijuana under State law,
then you…may not transfer firearms or ammunition to the
person.”

Such a person, the feds insist, would fall afoul
of 
Sect.
922(g)
 of the federal criminal code (from
the 
1968 federal
Gun Control Act
), which says that anyone “who is an
unlawful user of or addicted to any controlled substance” is
basically barred from possessing or receiving guns or
ammo.

Wilson thought that BATFE policy violated her Second
Amendment rights and sued.

To quote from my 2011 reporting:

As the suit says, “Ms. Wilson has never been charged with
or convicted of any drug-related offense, or any criminal
offense….Indeed, no evidence exists that Ms. Wilson has ever been
‘an unlawful user of, or addicted to, marijuana….’ Ms. Wilson
maintains that she is not an unlawful user of or addiction to
marijuana….Nonetheless, Ms. Wilson was denied her Second Amendment
right to keep and bear arms based solely on her possession of a
valid State of Nevada medical marijuana registry card.” The suit
argues the BATFE policy also violated her Fifth Amendment right to
due process since it presumes she is a prohibited drug user
arbitrarily.

An opinion in that case was issued yesterday by U.S.
District Court Judge Gloria Navarro, and it wasn’t good. It upheld
a motion to dismiss the case entirely by the federal government
defendants.

Quoting from the opinion (after saying the defendants
arguments that the case was moot because Wilson’s marijuana card
has expired in the years since the case was filed did not
hold up). Judge Navarro says Wilson’s argument that the ban on drug
users owning guns violates the Second Amendment:

fails as a matter of law because the Ninth Circuit has
already upheld the constitutionality of § 922(g)(3). United
States v. Dugan, 657 F.3d 998, 999–1000 (9th Cir. 2011). In Dugan,
based on the Supreme Court’s acknowledgement that the
individual right to possess and carry weapons is not
unlimited, the Ninth Circuit observed that “[h]abitual drug users,
like career criminals and the mentally ill, more likely will
have difficulty exercising self-control, particularly when
they are under the influence of controlled substances.”…..The
court further noted an important distinction between
the subsections of § 922 expressly discussed by the Supreme
Court in Heller and 922(g)(3): 

[U]nlike people who have been convicted of a felony or
committed to a mental institution and so face a lifetime ban,
an unlawful drug user may regain his right to possess a
firearm simply by ending his drug abuse. The restriction in §
922(g)(3) is far less onerous than those affecting felons and the
mentally ill. 
Dugan, 657 F.3d at 999. Therefore, given this distinction and the
danger presented by users of controlled substances, the Ninth
Circuit joined the Seventh and Eighth Circuits by
broadly holding that “Congress may . . . prohibit illegal drug
users from possessing firearms.” 

Plaintiff first feebly attempts to discredit Dugan by stating
that Dugan “is a deeply flawed opinion, lacking any meaningful
legal analysis . . ..” However, Dugan remains controlling authority
on this Court. Furthermore, this Court lacks the authority to
overrule a Ninth Circuit decision. ….In light of Dugan, any
amendment of this claim would be futile and, thus, Plaintiff’s
Second Amendment challenge to § 922(g)(3) is dismissed with
prejudice. 

Bad precedent makes bad law, and Scalia’s
all-too-forgiving aside in
Heller about the
array of gun laws that would still withstand Second Amendment
scrutiny claims another right.


Judge Navarro also denied various claims that either the
underlying statute or BATFE’s application of it violated
Wilson’s rights to First Amendment expression (possession of a
Nevada medical marijuana card is a form of expression she was being
punished for, she argued), that the BATFE’s policy violates the
Administrative Procedures Act, and that there was a substantive due
process claim (denied, if I’m reading it correctly, because a
direct First and Second Amendment claim, already denied, preclude a
due process claim under Fifth Amendment).

Wilson also argued a procedural due process claim: that
merely assuming, as BATFE does, that possessing a medical marijuana
card means she is known to be an illegal drug user violates her
right to due process. Navarro strikes that down thusly:

Plaintiff concludes that Defendants’ determination
that those persons that possess a registry card fit the definition
of an “unlawful user of a controlled substance” deprives her
of a right without adequate procedure…..However, Plaintiff fails
to recognize that she must articulate a “constitutionally
protected liberty or property interest” before her procedural due
process claim may proceed. Therefore, Plaintiff’s discussion
of any procedural inadequacies is insufficient to defeat
Defendants’ Motion to Dismiss. Because Plaintiff cannot identify a
constitutionally protected liberty or property interest, she
cannot state a procedural due process claim and the Court must
dismiss her claim with prejudice. 

This seems to be saying, on my read (I’m neither lawyer nor
judge) that, hey, we already said you don’t actually have a Second
Amendment right if you are a drug user, so you can’t make the case
that insufficient procedures for identifying you as a drug user
violate a Second Amendment right. This seems a little circular, but
perhaps I’m misunderstanding it.

I may be speaking later today to Wilson’s lawyers, in
which case I will update; they were not available for comment right
now.



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“Security Is Always a Choice Between Different Sets of Risk”

Politico
profiles
Bruce Schneier, a security specialist who has emerged
as one of the foremost critics of the security state. Here’s an
excerpt:

I was going to insert a joke here about the British "Carry On" films, but a discriminating alt-text connoisseur like yourself doesn't want to see that kind of shit.After 9/11, Schneier saw a
familiar utopian thinking creeping into the politics of national
security, and he grew into an outspoken critic. He coined the term
“security theater” to describe the showy-but-ineffectual
performance of security around air travel, a choreography designed
to produce a feeling of safety despite being poorly implemented,
defending against the wrong danger, or both. His blog, dedicated to
cryptography and tech security, was for a time a catalog of the
many ways that ever-changing TSA regulations had been defeated by
people with everyday resources but above-average creativity. And
last year, he caused a small controversy when he cited research
claiming that in the years following the September 11th attacks,
enough people had chosen long-distance driving over air travel that
the increase in auto-accident fatalities surpassed the number of
deaths in the Twin Towers.

For Schneier, security is always a choice between different sets of
risk, and there is no such thing as a perfect defense; you
calculate the probabilities, and the potential costs of your
decisions, as best you can. His arguments illuminate not only the
places where politics and superstition have worked their way into
supposedly rational systems, but also, in sometimes unexpected
ways, how the shadow of 9/11 continues to define U.S. national
security.

Read the rest
here
. Read Reason‘s interview with Schneier here,
and read a piece he wrote for us here.

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New York and California Suck For Taxpayers, and For Freedom

United StatesNew York and California are the
worst and second worst states in terms of tax burden, in what is
less than shocking news from the financial website,
WalletHub. The ranking tallies annual state and local
taxes, and puts the Golden State and the Empire State at the bottom
of the heap, with Wyoming and Alaska at the top as the two least
burdensome states for taxpapers in a listing that also includes the
District of Columbia (number 37, if you’re curious).

In and of itself, the ranking is helpful—but it’s also helpful
to cross-reference the tax ranking with separate rankings of
economic liberty and overall freedom to see how they correlate. The
result is a handy guide to places to live—or avoid like the
plague.

For its
tax rankings
, WalletHub compared: real estate tax,
state income tax, local income tax, vehicle property tax, vehicle
sales tax, sales and use tax, fuel tax, alcohol tax, food tax, and
telecom tax.

The five top-ranked states (least burdensome) are:

1. Wyoming: $2,365
2. Alaska: $2,791
3. Nevada: $3,370
4. Florida: $3,648
5. South Dakota: $3,766

The five at the bottom are:

47. Illinois: $9,006
48. Connecticut: $9,099
49. Nebraska: $9,450
50. California: $9,509
51. New York: $9,718

Adjusting for cost of living has some effect—Illinois rises to
38, and Nebraska to 37—but those are the biggest adjustments at the
top and bottom, while D.C. and Hawaii plummet in the rankings. But
those are the biggest shifts.

WalletHub

What’s interesting, though, is how the WalletHub
rankings compare to the Mercatus Center’s state-by-state ratings of
personal and economic freedom
. Mercatus scores each state on
over 200 issues
encompassing fiscal policy, regulatory policy, and personal
freedom
. These include tax burden, property rights, marijuana
laws, gun restrictions, government spending, occupational
licensing, marriage freedom, and many more concerns.

Obviously, the final results of such rankings
depend to some extent on how you weight each issue, and there’s a
lot of subjectivity inherent in such comparisons. But using
Mercatus’s overall score, the top five states for freedom are:

1. North Dakota
2. South Dakota
3. Tenessee
4. New Hampshire
5. Oklahoma

And the bottom of the barrel are:

46. Rhode Island
47. Hawaii
48. New Jersey
49. California
50. New York

As with the WalletHub rankings, you can hover your
pointer over each state for scores.

My takeaway, for what it’s worth: Stay the hell out of New York
and California.

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The NSA is Recording and Storing Every Single Phone Call in a Foreign Country

The National Security Agency
(NSA) has built and is apparently currently operating a program
that allows them to capture and review every single phone call made
inside a foreign country, according to a new report
from

The Washington Post
based on documents supplied by former
NSA contractor Edward Snowden. 

Basically, the NSA is DVRing an entire country’s worth of phone
conversations. From the Post story:

The voice interception program, called MYSTIC, began in 2009.
Its RETRO tool, short for “retrospective retrieval,” and related
projects reached full capacity against the first target nation in
2011. Planning documents two years later anticipated similar
operations elsewhere.

In the initial deployment, collection systems are recording
“every single” conversation nationwide, storing billions of them in
a 30-day rolling buffer that clears the oldest calls as new ones
arrive, according to a classified summary.

The call buffer opens a door “into the past,” the summary says,
enabling users to “retrieve audio of interest that was not tasked
at the time of the original call.” Analysts listen to only a
fraction of 1 percent of the calls, but the absolute numbers are
high. Each month, they send millions of voice clippings, or “cuts,”
for processing and long-term storage.

Right now, the program is operational in at least one country.
Yet although it was built with collection from only one foreign
nation in mind, the agency has contemplated using it on other
nations as well. It’s possible, in fact, that the program has
expanded beyond its initial target already:

Some of the documents provided by Snowden suggest that
high-volume eavesdropping may soon be extended to other countries,
if it has not been already. The RETRO tool was built three years
ago as a “unique one-off capability,” but last
year’s secret intelligence budget
 named five more
countries for which the MYSTIC program provides “comprehensive
metadata access and content,” with a sixth expected to be in place
by last October.

There’s no filtering mechanism whatsoever. Any extraneous
material that’s collected is excused as “incidental” collection,
including the phone calls of any Americans who happen to be in the
country, or who happen to be calling someone who is located
there.

The NSA isn’t the only U.S. intelligence organization to have
access to material collected through the program, although the
Post doesn’t specify which other agencies can get the
data, or under what conditions. 

And because the target is foreign, the program is only loosely
bound by legal restrictions:

Experts say there is not much legislation that governs overseas
intelligence work.

“Much of the U.S. government’s intelligence collection is not
regulated by any statute passed by Congress,” said Timothy H.
Edgar, the former director of privacy and civil liberties on
Obama’s national security staff. “There’s a lot of focus on the
Foreign Intelligence Surveillance Act, which is understandable, but
that’s only a slice of what the intelligence community does.”

All surveillance must be properly authorized for a legitimate
intelligence purpose, he said, but that “still leaves a gap for
activities that otherwise basically aren’t regulated by law because
they’re not covered by FISA.”

So, what we’ve got is a highly secret, hugely sweeping program
that, despite being intended for just one target, has either
already been expanded or is about to be, and that shares
information with other unnamed agencies, and that operates without
much law to govern its use. 

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Gene Healy: Three Years After US Intervention, Libya’s an Even Bigger Disaster

Libya suffered through an eventful St.
Patrick’s Day on Monday: car bomb
attacks in Benghazi killed at least eight people,
and the U.S. Navy SEALs scored “one for the Morning Glory”
by capturing the runaway oil tanker bearing that name in
order to return it to the Libyan government, such as it is. Three
years ago today, President Obama announced that America
would “not stand idly.” Gene Healy suggests that looking back, the
intervention appears to have been a moral vanity project carried
out by careless people who couldn’t be bothered to worry about
unintended consequences.

View this article.

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Progressive Activists MoveOn.org Sued by Louisiana for Using State Tourism Slogan on Billboard

An interesting new case in
Louisiana pits free speech against intellectual property law and a
major progressive activist group against the state.

Louisiana is suing liberal political action
committee MoveOn.org
for trademark infringement
 for using the state’s tourism
slogan, “Pick your passion,” in a billboard critical of Republican
Gov. Bobby Jindal. 

It would seem like a bit of an overreach for the state to want
exclusive domain over such a generic slogan, but the way MoveOn
used it was obviously a play on the tourism motto. In a message
critical of Jindal’s opposition to Obamacare’s Medicaid
expansion, the MoveOn billboard says: “Pick your Passion! But
hope you don’t love your health. Gov. Jindal’s denying Medicaid to
242,000 people.” 

The state is now taking legal action against MoveOn in federal
court.

In a statement announcing the suit, Lt. Gov. Jay Dardenne said,
“MoveOn.org has every right to attack Gov. Jindal, the state’s
refusal to accept Medicaid or, for that matter, me personally. But
they do not have the right to use our protected service mark, which
is used solely for the purpose of promoting and marketing
Louisiana. We own the mark and its use is under the direction of my
office, not the Office of the Governor.”

Because MoveOn is a liberal group openly critical of GOP Gov.
Jindal, some are suggesting that
the lawsuit is politically motivated
. But barring vindictive
government conspiracy, there are still legitimate First Amendment
issues at stake. 

“Neither Governor Jindal nor Lt. Governor Dardenne will silence
MoveOn members,” the organization said in
a statement
. “This billboard is protected by the First
Amendment’s guarantee of freedom of speech. Instead of wasting our
time and theirs with a pathetic attempt to suppress criticism of
the state government, state officials should focus on helping
nearly 245,000 Louisianans access Medicaid.”

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“Go Fruve Yourself!”; Sad-Sack Govt Attempt at Nutritional Advice Just May Start Revolution.

The USDA has given $5 million in your tax dollars to a
University of Tennessee campaign that tells kids to “Get Fruved.” Part of that grant is
on display above in a 30-second that implores an unsuspecting
college student (who I really hope is calling out a campus SWAT
team) to “get fruved – grape style!” Where are ultra-restrictive
campus speech zones when you need them?

Fruved is a portmanteau of
fruits and vegetables and the campaign – like so
many of these things – around awful videos and activites (such as
Join Team
Banana
“).

Via
cnsnews.com
:

Other fruved.com website pages are still in development
and feature an
image
 of fruits and vegetables with the text, “Nothing to
see here, yet. You can go Fruve yourself.”

“Ultimately the project will continue with high school students
working with middle school students to develop and implement the
project on middle school campuses and then middle school students
working with elementary students to develop and implement the
project in elementary schools,” the Fruved.com website says.

Hat tip:
Robby Soave at The Daily Caller.

Am I wrong that this sort of shit gives the sadz? When you tally
up the recent spate of government-sponsored “viral” marketing
campaigns (such as the awful “brosurance” ads for Obamacare and the

ACA GIF bracket contest
 [see image on right]), it’s
incredibly hard not to conclude that the Rapture has come and
gone.

And then, I remember the past darkly and figure it’s gonna be
all right. Here’s a 1970s-era PSA about “hankerin’ for a hunk of
cheese” that readers of a certain age will recall while thowing up
a little bit in their mouths.

I’m willing to assume that the second cave painting at
Lascaux
 was probably an anti-smoking ad. But simply
because insipid official attempts to get us all to eat our
vegetables and take out the garbage and not use certain drugs are
eternal doesn’t make them any less depressing.

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Obama Says Obamacare’s Limited Doctor Networks are About Choice—But In Some Cases There Isn’t One

The gist of President Obama’s excuse for why some people can’t
keep their doctors under his health care overhaul is that it’s not
really his fault. Don’t blame the president, because it’s all just
a natural part of the health insurance marketplace.

Asked in
a WebMD interview
about limited access to doctors under the
law, Obama responded, “these are private insurance plans, which
means that they’re going to have networks. That’s pretty much true
of any health insurance plan you’ve got right now…that’s not unique
to the Affordable Care Act.”

What it comes down to, he said, is people making choices.

“For the average person, for many folks who don’t have health
insurance initially, they’re going to have to make some choices.
They might have to end up switching doctors in part because they’re
saving money. But that’s true if your employer suddenly decides
this network is going to give you a better deal. ‘We think this is
going to help keep premiums lower. You gotta use this doctor as
opposed to this one.’”

Well, yes, people in the private health insurance market have to
consider tradeoffs and make their own choices. But the choices
about plans and coverage networks facing many people now have come
about as a direct result of Obamacare, which, by design, shook up
the market for individual health coverage.

Thanks to Obamacare, the health plans—and the networks and
doctors that went along with them—that millions of people had and
liked are no longer available. Those people had made their choices,
and then Obama took their choices away, after promising that he
wouldn’t. The choice those people have now is a choice that he
forced upon them, that many didn’t want, and that he said they
wouldn’t have to make.

Meanwhile, the plan choices offered through the law’s exchanges
are, in many cases, rather limited. In 515 mostly rural counties in
15 different states, there’s only one health insurer selling
coverage,
according
to The Wall Street Journal. In the vast
majority of those counties, the local Blue Cross & Blue Shield
plan is the only option.

Obama acknowledges as much, while attempting to frame it as good
news. “The good news” he says, “is, in most states, people have
more than one option.” Put another way: This is about choice. But
in some places, there isn’t one. The only choices Obama likes are
the ones that he allows. 

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Rhode Island Police Chief Accused of Issuing Parking Tickets as Part of Political Retribution Allowed to Retire With Full Benefits

spells asshole with $$?The police department in Cranston, Rhode Island,
was accused late last year of issuing more than 100 parking tickets
in two wards that were represented by City Council members who
voted against a new police contract in November. The city’s police
chief, Marco Palombo, was put on paid leave in January after an
internal affairs investigation into the allegations bagan.

But Marco Palombo won’t have to pay for the apparent act of
political corruption and abuse of power. This week, Cranston’s
mayor decided to reinstate Palombo so that the police chief could
retire with a full pension.
Via the Providence Journal
:

Mayor Allan Fung reinstated Palombo Monday for the
“sole purpose” of allowing him to retire.
“It was the right thing to do,” Fung said in a statement. “It is
time for new leadership in the Cranston Police
Department.”

Palombo will retire with pension
benefits..…

[When he suspended Palombo in January, the mayor said]
that a number of police officers were under suspicion of
misconduct. His placement of Palombo on leave came one day after
the mayor announced he had asked the state police to investigate,
which, he said, would also help “restore confidence in the city of
Cranston, in city government and our police
department.”

Whatever attempts Fung may or may not have actually made to
“restore confidence” in the local government are doomed to fail in
the wake of this news.  A lawyer for the police union says the
union’s president ordered the increase in ticketing, but the fact
that the order came down the night before the vote on the contract
was, uh, coincidental.

The notion that the union president, and not the police chief,
is giving orders to police officers, who are still public
employees, ought to concern any Cranston resident interested in the
rule of law. Fung’s mission to restore confidence seems hopeless,
though voters in the city may not care. Fung, a Republican, was
re-elected with 97 percent of the vote in 2012; he was the only
name on the ballot.

To add insult to injury, the outgoing police chief claimed in
his statement that he had “accomplished the professional goals I
set for myself and the department when I was appointed” and that
he’s ready to “take on new challenges.” All while continuing to
receive money from taxpayers he’s been accused of abusing.

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Kid Posts Something Stupid on Instagram. What Happened Next Will Amaze You!

phone shockSome kid in Weston, Connecticut,
anonymously posted “offensive messages” next to pictures of middle
school students on Instagram.
Here’s what happened next
:

Weston police have identified a juvenile who is responsible
for posting threatening comments to Weston Middle School students
on Instagram 
recently…


The suspect posted the comments, then removed them, saying he or
she “just wanted attention.”

The suspect will not be arrested, and no charges will be
filed against the juvenile
The comments were not
considered credible threats, and the case was closed
, the
Weston Forum said. 

The comments were admittedly
pretty awful
. (“YOU DON’T DESERVE TO LIVE” is one of the more
printable options.) Some school officials—and some parents—freaked
out a little
. But the original poster removed the comments and
apologized.

And then, unexpectedly, everyone managed to calm the hell down.
No one was arrested. No one was shot. No one was named in news
accounts. No one’s life was ruined.

Weston Police Detective Carl Filsinger
issued a press release
about the incident yesterday:

“The nature of this case is about making a mistake on the social
media and not realizing the kind of effect it has on others,” Det.
Filsinger stated in the press release.

Well played, Weston.

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