Month: February 2016

Funeral services will be held today in Kanab, Utah, for LaVoy Finicum, the rancher killed last month during the occupation of the Malheur Wildlife Refuge in Oregon. In a bulletin distributed this week to cops across the region, the Utah Statewide Information and Analysis Center—one of the dozens of intelligence-sharing “fusion centers” around the country that get funds from the Department of Homeland Security—warns that “extremists may utilize such a high profile funeral for media attention or to further ideological beliefs.” Although “no credible threats to law enforcement are present at this time,” the authors still think police should be wary: “Caravans of individuals traveling to the funeral services may be comprised of one or more armed extremists. Law enforcement should remain vigilant and aware that confrontation with these potentially volatile persons, may include more than one individual. These individuals may adhere to a sovereign citizen ideology, and may not recognize law enforcement as a legitimate authority.”

The report includes several “visual indicators” to help police determine whether they’re dealing with “extremist and disaffected individuals.” These range from images associated with specific militant groups, such as the Oath Keepers and Three Percenters, to a more generic patriotic symbol, the Gadsden flag—a famous Revolutionary War banner featuring a coiled rattlesnake and the slogan “Don’t Tread on Me.” One of the “indicators” is a slightly altered version of a picture popular with fans of the Grateful Dead; the guide does not note this potential source of confusion, describing it only as “common sovereign citizen imagery.”

Although “some or parts of these symbols are representative of patriotic and American revolutionary themes,” the report says, “they are often associated with extremism.” There is little effort to apply even that much nuance to the individual symbols. The Gadsden flag is associated with several political movements, such as the Tea Party protests; it has also been adapted by apolitical subcultures, such as the fans of U.S. Soccer. But the bulletin simply declares that it is “commonly displayed by sovereign citizen extremists.”

One private-sector security professional who received the bulletin worries that it could lead to a kind of profiling. “I work with a young man, 24 years old, three associate’s degrees, volunteer fire fighter, dreams of becoming a police officer,” he says. “He’s also an Armenian-Russian immigrant who just earned his American citizenship. He sports a Gadsden flag on his car because of what it represents in our country’s history.” If a cop sees that car today, the security worker worries, the officer’s “thoughts will automagically flip to profiling him” as a violent extremist.

Mike German, a former FBI agent who infiltrated far-right groups in the 1990s, has a similar objection. “I always try to look at these alerts from the perspective of the police officer on the street,” he says. “What will the officers know after reading this that they didn’t before? Here all they know is to be afraid if they see a Gadsden flag, which could result in an unnecessarily hostile encounter that would increase the chances of violence. There’s nothing here that would help them correctly identify someone who held these beliefs, understand what might trigger hostile reactions, or how to talk to them in a way that would defuse any unnecessary tension.” He also worries that the bulletin “improperly implies holding such beliefs makes them dangerous”; most of the people involved in these movements are nonviolent, he says, and treating them all like budding terrorists just makes a confrontation more likely.

German, who is now based at New York University’s Brennan Center for Justice, thinks it’s “perfectly reasonable for the fusion center to make law enforcement aware of the situation regarding the Oregon standoff and police shooting, and how the upcoming funeral might make those out-of-state events more pertinent to local enforcement needs and officer safety.” But he feels the report’s approach is “is unhelpful because it is overgeneralized in describing a threat and lacking in any useful advice. It seems almost like CYA, so they can say ‘we warned ’em’ if anything bad happens.”

The Statewide Information and Analysis Center has not responded to my requests for comment. To read the full bulletin, go here.

If Donald Trump is the Tony Soprano of American politics, Ted Cruz is a less-affable version of Mr. Haney from Green Acres (Ok – not quite, but sort of! Do feel free to say, H&R readers, which movie character is a better fit with Cruz). But the only thing cleverer than Cruz’s impression of Inigo Montoya in Princess Bride (and not the least because it irritates Billy Crystal and the insufferably self-righteous Mandy Patinkin so much) is the campaign strategy he devised in Iowa to defeat the ethanol cartel and win the primary, I note in my column at The Week.

No candidate, Republican or Democrat, had to date attacked Iowa’s beloved ethanol subsidies and lived to tell the tale. The two biggest subsidy boosters in living memory are arguably President Obama and Donald Trump. But how did Cruz pull it off?

Essentially, by putting together a shrewd electoral strategy that thwarted the “public choice” dynamic that has been keeping the ethanol cartel in business by transferring $10 billion annually to its pocket from that of the drivers while gumming up their cars.

Go here to read what this strategy is.

And watch below Cruz’s impersonation of Inigo etc.:

Yesterday a federal appeals court cast doubt on the constitutionality of Maryland’s ban on so-called assault weapons, concluding that the law imposes a “substantial burden” on the exercise of the right to keep and bear arms and should therefore be subject to “strict scrutiny.” The decision, by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, sends the case back to U.S. District Court in Baltimore for consideration under that highly demanding standard. Since at least two other appeals courts have upheld bans on “assault weapons,” the ruling creates a circuit split that may lead the Supreme Court to step in and resolve the issue.

Maryland’s Firearm Safety Act (FSA), enacted after the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, bans possession, sale, or transfer of 60 specific rifle and shotgun models, along with “copies” of them, a term the statute does not define. The prohibited weapons include the highly popular AR-15 rifle “and all imitations” of it as well as semi-automatic versions of the AK-47. The upshot, writes Chief Judge William B. Traxler on behalf of himself and Judge G. Steven Agee, is that the law “bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes.” The FSA also bans the sale of magazines that can hold more than 10 rounds.

The 4th Circuit finds that the FSA “implicates the core protection of the Second Amendment—’the right of law-abiding responsible citizens to use arms in defense of hearth and home.'” In light of the Supreme Court’s precedents in this area, the court says, “the burden is substantial and strict scrutiny is the applicable standard of review.” Under strict scrutiny, the government must show that a challenged regulation is narrowly tailored to serve a “compelling governmental interest,” a test that is rarely satisfied.

Traxler notes that “the conduct being regulated by the FSA includes an individual’s possession of a firearm in the home for self-defense”—the right at the center of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), cases in which the Supreme Court overturned gun bans on Second Amendment grounds. He also points out that “the banned semi-automatic rifles are in common use by law-abiding citizens,” a criterion for determining which weapons are covered by the Second Amendment. “It is beyond dispute from the record before us…that law-abiding citizens commonly possess semi-automatic rifles such as the AR-15,” Traxler writes. “Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States.”

It is also clear that “large-capacity magazines” (LCMs) are in common use for lawful purposes. “The record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States,” Traxler writes. “In fact, these magazines are so common that they are standard.”

The court rejects the argument that the banned firearms are “dangerous and unusual” weapons, which the Supreme Court has said are not covered by the Second Amendment. All firearms are dangerous, Traxler notes, but “assault weapons” are plainly not unusual. “Semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment,” he concludes.

The court settles on strict scrutiny as the appropriate standard of review after noting that the FSA “implicates the ‘core’ of the Second Amendment” (the right of armed self-defense in the home) and “substantially burden[s] this fundamental right.” Contrary to what the district court concluded, Traxler says, “the fact that handguns, bolt-action and other manually-loaded long guns [and] a few semi-automatic rifles are still available for self-defense does not mitigate this burden.” He notes that the Supreme Court “rejected essentially the same argument in Heller—that the District of Columbia’s handgun ban did not unconstitutionally burden the right to self-defense because the law permitted the possession of long guns for home defense.”