The Arizona connection to McDonald v. Chicago

The rest of the U.S.A. became a bit more like Arizona this morning: the Supreme Court ruled in McDonald v. Chicago that the Second Amendment applies to the states and thus that (given the Heller v D.C. ruling) the right of the people to keep firearms, including handguns, in their homes is protected by Federal law. The Arizona Constitution already protects such a right; residents of other states are not so fortunate.

Although there is a long way to go--the right to carry still has not been established, the court did not even offer a standard of scrutiny, and the case's 5-4 split is disappointing--we rightly celebrate today, and Alan Gura, Bob Levy, and others who organized and argued this challenge, Heller, and the follow-up cases deserve our congratulations and our thanks. It's worth keeping in mind that they could not have won this victory were it not for the scholarly rehabilitation of the "individual rights" view of the Second Amendment.

Following the 1989 publication of Levinson's "The Embarassing Second Amendment" in the Yale Law Journal and certainly by the late '90s when said view made it into Laurence Tribe's textbook the "individual rights" view became mainstream. It took commentators a little while to catch up; until Heller it was common to hear the individual rights interpretation called a popular myth with no scholarly support. (Why haven't we brought these "journalists" and politicians to account? In the age of Google it is very easy to embarrass someone with his own words!) The adoption of the individual rights interpretation by left-wingers like Levinson is symptom, not cause; with few exceptions, those whose cultural commitments were anti-individual-rights were not going to make the switch in the absence of strong arguments from others.

Among the many law review articles cited in the McDonald decision is an important textual study, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866-1868, by one by David T. Hardy, published in the 2008-2009 Whittier Law Review. Some readers may recognize that name: Hardy lives in Tucson, represented Graham County Sheriff Richard Mack in his anti-Brady Bill case, and 'blogs at Of Arms and the Law.

What many do not know is that a 1974 article in the Chicago-Kent Law Review, also called "Of Arms and the Law" (now available on SSRN), by Hardy and Tucson personal injury lawyer John Stompoly, was perhaps the first serious modern argument for the individual rights view of the 2nd Amendment. 36 years ago, two Arizonans set into motion the shift toward the individual rights view.

The article's approach to the Constitution is "dated", and that's a charitable term: it makes serious appeals to the "intent of the framers", which one cannot do today without being laughed out of the room. It's still worth reading, if perhaps for another reason. its long discussion of the empirical effectiveness of firearms controls reminds us of something that has been forgotten: even in the early 1970s the case for strict gun control had been empirically refuted.

SB 1070: The worst that could happen.

Born in East LA from CheechAndChong

Also see the film of the same name. Sheriff Joe's goons actually did this to some kids in the Phoenix area earlier this decade, and it wasn't funny. I can't remember their names or how to find it quickly at this point. Eleanor Eisenberg would know.

No, I don't think this is likely, but it seems to be what the wild imaginations of e.g. Raul Grijalva, Kyrsten Sinema, and Phil Gordon have thought SB 1070 to be. More on that later.

Plumbers vs Waterless Urinals

In many ways, life is better on this side of the Colorado. For example, however crazy we are about immigration--and wasn't that craziness imported from So. Cal?--the pollution in our air doesn't cause the sort of dementia that makes waterless urinals controversial.

Via Wired, we have a report that the plumbers' union in Southern California attempted to ban waterless urinals, and that it made some rather nutty claims to support this:

To buttress their health claims, plumbing unions in California hired Phyllis Fox, an environmental engineer and water quality specialist. She conducted her own analysis, which involved visiting men’s rooms to acquaint herself with the subject matter. Fox didn’t perform any tests, but by examining the designs of the Falcon and other waterless urinals, she concluded that hydrogen sulfide gases in the sewer lines could escape when the cartridges were replaced, resulting in “unconsciousness, respiratory paralysis, and death.” In other words, the waterless urinal could kill.

Yes, janitors in the many Arizona public buildings with flushless urinals die of hydrogen sulfide poisoning. All the time. That is, if they survive traffic: our gun laws mean that shootouts over lane changes and parking disputes happen everyday.

But seriously, this dispute shouldn't be happening. Other states can look to Arizona and conclude that flushless urinals are safe and effective.

Read the original article: it has quite a few Arizona connections, including a somewhat humorous account of a plumbing incident at Fort Huachuca, and some interesting facts. I had no idea how much electricity was used for water pumping, and didn't consider that flushing a urinal aerosolized bacteria, either.

On Earth Day, I recommended that more businesses install these urinals, and additionally that people just "lift a leg" from time to time. There's no sense in contaminating clean drinking water with human waste.

"Get in line."

I just stumbled on this two-month-old clip of state representative Steve Montenegro, himself an immigrant, speaking in support of SB 1070.

And I'm wishing we had some IQ qualification for public office.

Says Montenegro: "I am saying if you here illegally, get in line, come in the right way."

There is no "line." None. Montenegro is either stupid or he's lying or possibly both--and Fox News reporters don't have the honesty or gumption to ask "what line"?. There is currently no way someone wishing to get a work visa or to immigrate can simply file paperwork and wait for bureaucrats to process it in turn and be guaranteed issue. Both immigrant and nonimmigrant work visas are subject to quotas and to often arbitrary denials.

It cannot be emphasized enough: Coming here to live and work, temporarily or permanently, is not a matter of merely signing up and waiting for government employees to finish the data entry and do a background check. There is no line.

If Montenegro can prove me wrong, I will publish a retraction here and donate $100 to the charity of his choice. Right now he's looking like either a liar or a moron.

Important new SB 1070 brief filed: AACJ says law requires 4th Amendment violations.

A section heading sums it up: "SB 1070 manufactures cause"

Today four lawyers from the Arizona Attorneys for Criminal Justice, the state affiliate of the National Association of Criminal Defense Lawyers, filed what is probably the most important brief to date on SB 1070. Therein they argue that violation of established 4th Amendment standards of suspicion inheres in the mandates of 1070. To quote:

The statutory scheme created by SB 1070 would subject individuals to de facto arrests absent adequate constitutional protections. SB 1070 proposes to substitute reasonable suspicion for the well-established requirement that an arrest must be justified by probable cause to believe that a violation has occurred. Even in cases where an investigative stop by police is justified by reasonable suspicion, it is possible for police to exceed the permissible scope of the stop and convert an investigative detention into a de facto arrest, and SB 1070 seeks to do just that...

A person’s immigration status is not something that can be determined by state and local law enforcement officers, or even by federal immigration officers, in the context of a brief investigatory detention. Instead, persons seized will be subject to a prolonged detention, for which the Fourth Amendment demands a finding of probable cause. SB 1070, however, permits this prolonged detention without the requisite finding of probable cause that the person is unlawfully present in the United States.

Those who've been following the matter may recall that in an interview with the Arizona Republic Mark Spencer of the Phoenix Law Enforcement Association claimed that, in the paper's hypothetical stop scenari (that other interview participants thought would have SB 1070 implications), no reasonable suspicion concerning immigration status existed therefore SB 1070 mandated nothing. The AACJ amicus brief goes further than this, arguing (much more intelligently than Martin Escobar's lawyers did in their sloppy "first post!!!!1111!!" complaint filed immediately following the bill's passage) that there's almost no way a policeman could possibly have reasonable suspicion that someone was in the US illegally:

In Arizona specifically, reliance on race, language, and dress as the basis for reasonable suspicion used to justify a seizure all but guarantees a constitutional violation.

In a 1985 class action against the INS for engaging in a pattern of unlawful stops to interrogate persons of Hispanic appearance, the Ninth Circuit Court of Appeals held that Hispanic appearance and presence in an area where illegal aliens travel is not enough to justify a stop. Nicacio, 797 F.2d at 703. In that case, the government also used the manner of dress as a factor in the reasonable suspicion analysis. However, the Court rejected that factor, noting that such “characteristics were shared by citizens and legal aliens in the area, as well as illegals. As the district court found, the appearance and dress factors relied upon by the agents ‘are a function of the individual’s socioeconomic status.’” Id. at 704....

The scheme employed by SB 1070 pays lip service to the constitution by stating that race cannot be the sole factor for making a stop. However, as seen in decades of case
law, officers routinely use race as the primary basis for a stop and cite “rote” factors as described in Rodriguez or “profiles” of driving behavior such as those described in Gonzalez-Gutierrez that do not distinguish criminal activity from innocent activity. All too often, our attorneys see cases filed by law enforcement officers of all jurisdictions where the initial stop was based on the driver’s demeanor. Included in the list of factors to be used for determining reasonable suspicion include the driver looking at an officer in a parked vehicle as he passes and the driver not looking at the officer...

“Unlawful presence” is a highly technical term, meant to describe the status of individuals who are present in the United States without the proper governmental authorization. Just like citizenship, it cannot be determined by physical appearance or language, but is established by operation of law...

SB 1070 poses an immediate and irreparable harm in that it compels the unlawful detention of U.S. citizens and others who are lawfully present in this country. The prolonged detention requirement of A.R.S. § 11-1051(B) immediately violates the rights of every U.S. citizen in Arizona of “Mexican ancestry” or “Hispanic appearance.” Although the statute allows a presumption of lawful immigration status if the Hispanic
citizen produces an Arizona state driver’s license, there is certainly no requirement under Arizona law for a citizen to possess a driver’s license when he or she leaves home each day. And as a citizen, a person of Hispanic appearance or Mexican descent, of course, does not possess valid immigration documents because he or she is not an immigrant.

The brief has been filed in support of the plaintiff's motion for preliminary injunction in the ACLU Foundation / National Immigration Law Center/ MALDEF Friendly House et al vs Whiting et al lawsuit. The complaint is also worthwhile reading. If nothing else, read the descriptions of the individual plaintiffs: instant rebuttals to the glib right-wingers who think that only illegal aliens will be negatively affected by this law.

Brief authors are, in order listed, David J. Euchner, Louis S. Fidel, Matthew H. Green, and Adam N. Bleier, all Tucson-based defense lawyers. Green's has enough reputation as an immigration lawyer for me to recognize the name; Euchner is an assistant public defender and well-established activist on behalf of various good causes. No word on who wrote what, but large portions have the understated, incisive wit that Euchner brings to everything except his dull, pedantic, and irredeemably awkward contributions to the Arizona and National Libertarian Party platforms. (Which is a way of saying that it's good to see him moving on to better things.)


A final aside: Have a look at Footnote 1. Clever! Complaining that SB 1070 doesn't define "reasonable suspicion" is forgivable when e.g. Facebook commenters do so, but recall that this has been one of Kyrsten Sinema's gripes. However dippy she is, she's a lawyer. She should know better.

Joesler, who set Tucson's architectural "tone", featured in exhibition.

Driving or walking about Tucson's older neighborhoods, it's difficult not to see the influence of Josias Joesler. An eclecticist responsible for bringing "Spanish Colonial Revival" and "Pueblo Revival" style to Tucson, he is best known for St. Phillip's Church and Plaza, Broadway Village Shopping Center, and the Catalina Foothills Estates residential subdivision.

He's largely if not entirely responsible for the tendency in Tucson to make buildings appear older than they are. At his best, his works are near-paragons of the art of building with the desert landscape. At his worst, he was a pastiche artist. For better or for worse, he largely set the "tone" for development in central Tucson and the Catalina Foothills; many more "modern" developments including Casas Adobes Plaza show his influence. As reported in the Daily Star, through 21 August the University of Arizona Library's special collections department is featuring a Joesler exhibit, consisting of original plans, concept drawings, and photographs of his buildings.

According to Russell Pearce, an illegal alien could assassinate Russell Pearce with impunity.

According to Russell Pearce, an illegal alien could assassinate Russell Pearce with impunity.

He didn't actually say that, but he's quoted as follows in the Arizona Capitol Times:

Pearce’s interpretation of the 14th Amendment is much different than the definition established by the Supreme Court. He said the 14th Amendment makes it clear that, in order to be granted citizenship, a person born in the U.S. must also be under the jurisdiction of U.S. government. He said the federal government has misinterpreted that clause by allowing children of illegal immigrants to become citizens even though, as he sees it, they are not under the jurisdiction of the U.S. government.

“We don’t have jurisdiction over those who break into the country,” Pearce said. “Just like a foreign diplomat, we have no jurisdiction over them.”

That's new! "No jurisdiction" means that an illegal alien cannot be made to stand trial in a US court and cannot be sued except if he consents to be sued. If Pearce is correct, this would mean (among other things) that an illegal alien fed up with Pearce's contribution to absurd "enforcement first" opposition to immigration reform or perhaps with his attempts to incite pogroms could simply kill him and never have to answer for the crime.

Yes, this means that Arizona is "making news" again. At least with SB 1070 we could say that half of the attention was either hyperventilation of those who expect the courts to make a worst-case change of standards of reasonable suspicion or due to (deliberate) misrepresentation of what was in the law. (It does not, for example, establish a new trespassing offense.) And at least in the case of "ethnic studies" we could say that the prohibition of teaching crass ideology (much different than teaching history or teaching about ideology) on the taxpayer dime was justified. But this time, the press is dead-on: Pearce and John Kavanagh intend to introduce a bill in the next legislative session to challenge settled 14th Amendment law.

Kavanagh's justification (as quoted by CNN) is almost as loony as Pearce's:

"If you go back to the original intent of the drafters ... it was never intended to bestow citizenship upon (illegal) aliens," said Kavanagh, who also supported Senate Bill 1070 -- the law that gave Arizona authorities expanded immigration enforcement powers.

Yep, Kavanagh has gone to that modern-day last refuge of scoundrels on Constitutional matters, the same place the Brady Center went on the 2nd Amendment: original intent. When one cannot support one's position by textualism or, barring that, by appeal to some theory of law, pretend that one's own position is that of (all of!) those who drafted and adopted the law and that such "intent" should trump public meaning. "What they meant to say was: ___[wacky mad libs]___"

Original intent is an intellectual nonstarter and anyone advocating it in 2010 is an ignoramus, a sleaze, or a simple doofus. As legal theory it has been dead for over two decades and was rotten long before that. But unlike Pearce's position, taking it seriously doesn't lead to Kavanagh's assassination, unless...

Knuckle-dragging, Prescott edition.

"Knuckle-dragger" is one of those insults that works. It's not mere scatology, nor a nonsequitur about somebody's mother's occupation, and far more evocative than the more easily brushed-off stupid. Of late it's been a faddish delight among free-marketeers to point out when leftists are advocating a folk economics rooted more in instincts that, however bizarre in a capitalist society, could be adaptive for hunter-gatherers.

We can make fun of Jane Brewer demanding, despite those evil foreigners being so sneaky as to leave the border regions one of the safest places in America, that the border be "secured" but not asking for the comprehensive immigration reforms that would make that easier and cheaper. When tribal brutishness goes from silly to ugly, it's less easy to laugh. But nonetheless what's going on in Prescott is hilarious.

Jennifer Fang, a new 'blogger on Blog For Arizona, sums it up well. A mural celebrating "green transportation" is being painted on the wall of the Miller Valley Elementary School. Have a look at the Prescott Courier's photos. It's bad art. It doesn't look like "graffiti in LA" but it does look like trashy street art, the sort I remember seeing on Freret Street buildings in New Orleans but without the (thin) excuse of "authenticity". It's a flubbed caricature of the visually grating, intelligence-insulting worst of the New Deal WPA murals, and the outsized boy so centrally featured makes it 3 times worse than it would have been otherwise. (I made up the number. You get the point. And at least the WPA murals weren't mere labels for the buildings. This one is "happy healthy children here, and support green transportation!" Absurd in a literate society.) Not only is it grotesque, it matches the Prescott aesthetic--and by that I don't mean the fake waterfalls of the new development--about as well as would the Eiffel Tower. Intrinsically ugly, out of place, and amateurish on top of that, it ruins the neighborhood ambiance and has the potential to depress property values.

But that's not the gripe that's making the news. According to the muralist in his interview with the Prescott Daily Courier, for two months people have been driving by shouting things like "You're desecrating our school," "Get the nigger off the wall," and "Get the spick off the wall." Yes, people are bothered not so much by the art but because a dark-skinned Hispanic boy at the school was the model for the featured grotesque.

I have enough ties to Prescott now (come Oct. I can say that's where my "in-laws" live) that this disappoints but doesn't surprise me. The area has for a long time been dominated by old folks, and a large minority of those are the sort to whom bigotry comes as naturally as calculus does to a physicist. Putting one of those low-status colored people on the wall, and not the godawful ugliness of the piece, somehow is a "desecration".

No word about this from the model himself. The poor kid was painted to look like he had a bad lymph node disorder; on top of that finding out that people--his neighbors, given that Prescott is still a rather small city--hate him for no reason except that he didn't have the good sense to choose 100% European ancestors has probably been a bit traumatic.

As the Courier noted in its editorial, it's 2010 and this is just a mural; in other words, the controversy is based on nonsense.

Contrary to rumor, it doesn't seem that Miller Valley principal Jeff Lane wanted the skin-tones lightened but rather wanted the piece touched up for aesthetic reasons. Councilman Steve Blair (again reported by the Courier), on the other hand, took the nonsense to higher levels:

On his May 21 show, for instance, Blair said, "I am not a racist individual, but I will tell you depicting a black guy in the middle of that mural, based upon who's President of the United States today and based upon the history of this community, when I grew up we had four black families - who I have been very good friends with for years - to depict the biggest picture on that building as a black person, I would have to ask the question, 'Why?'"

Why not? And what does Barack Obama have to do with this? Further down:

Blair said he has received a number of calls from long-time Prescott residents who ask, "Who authorized that graffiti on the wall?" He added: "What these people don't like is somebody forcing diversity down their throats."

I see. Depicting one of the students at the school on the mural is a (perhaps sexual) act of dominance. Plenty of room for explaining that with current sociobiological theories of racism; I'll leave that up to the reader.

Medical marijuana headed for the ballot.

It's the earliest ballot initiative filing in recent memory: on 14 April, the MPP submitted signatures for their ballot initiative, which got the go-ahead yesterday.

Full text will be analyzed as soon as I have it. Until then, read the MPP's summary.

Some of you may have voted for a similar measure in 1996, but that was subsequently all but set aside by the legislature. Since then, it has become nearly impossibly for the legislature to override an initiative. You may have voted for it again when it used the word "prescribe" not taking into account that the Federal government gave that term meaning beyond the obvious plain language, in a way that physicians could lose their ability to write "prescriptions" altogether if they prescribe marijuana.

This 'blogger favors legalization, both to reduce smuggling traffic at the border and as a matter of basic human rights. And all drugs except antibiotics should be available without a prescription. But we're not going to see that this year. This initiative may not be perfect, but will provide relief for some, and deserves support.

Puerto Rican almost deported to Mexico.

Following an arrest in connection with a car theft, a natural-born Puerto Rican U.S. citizen was detained for three days by ICE and nearly deported to Mexico.

Sounds like the popular version of SB 1070, right? Police hand over Latinos to ICE, where they will be racially profiled. Two problems: SB 1070 doesn't go into effect until 29 July, and this incident took place in Berwyn, IL.

Proof that there's nothing "special" about Arizona. Shall we boycott Berwyn or Chicagoland now?

The geographic references might not make sense to my Arizona readers, but that ICE in Berwyn couldn't figure out that the guy was an American, or at least, not a Mexican was pretty ridiculous. If they didn't know what a Mexican (or at least a Mexican-American) was, they could have walked along Cermak toward Cicero Ave. and figured it out. I could almost understand someone in, say, Bemidji Minnesota not knowing that "Spanish" people come in different kinds, but Berwyn?

And do we need any more illustration of why neither physical appearance nor skill with English are "reasonable suspicion" for being a foreigner?