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From todays Fisher v. Kealoha opinion from the U.S. Court of Appeals for the 9th Circuit (and Judge Alex Kozinskis separate opinion, though he also joined the panel opinion) like many judicial opinions, it leaves much unresolved, but it flags an important question for the future: What sorts of procedures must the government offer for recovering Second Amendment rights that were lost as a result of a criminal conviction?

Kirk Fisher appeals the district courts adverse grant of summary judgment on the issue of whether section 134-7 of the Hawaii Revised Statutes constitutionally prohibits him from owning or possessing firearms because of his 1997 conviction for harassment [of his wife and daughter] in violation of section 711-1106 of the Hawaii Revised Statutes.

This appeal involves the interaction of three statutory provisions: (1) section 134-7(a) of the Hawaii Revised Statutes, which prohibits a person from owning or possessing firearms if that person is prohibited from possessing firearms under federal law; (2) 18 U.S.C. 922(g)(9), which prohibits the possession of firearms by persons convicted of any misdemeanor crime of domestic violence; and 18 U.S.C. 921(a)(33)(B)(ii), which provides that a person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.

We have previously determined that section 922(g)(9) burdens conduct protected by the Second Amendment and upheld its constitutionality, facially and as-applied, under intermediate scrutiny. United States v. Chovan, 735 F.3d 1127, (9th Cir. 2013), considered, among other things, whether section 922(g)(9) could be constitutionally applied to a defendant based on a fifteen-year-old domestic violence misdemeanor conviction. We recognized that keeping firearms out of the hands of domestic abusers is an important government interest and noted the high rate of recidivism for domestic abusers and the number and likelihood of domestic violence deaths involving the use of a firearm.

We also rejected Chovans argument that section 922(g)(9) could not constitutionally apply to him because he had committed no further acts of domestic violence in the fifteen years following his conviction. Even assuming that Chovan had committed no such acts, we explained, Chovan had failed to adduce sufficient evidence:

(1) contradicting the governments evidence regarding the high rate of domestic violence recidivism; and (2) showing that a domestic abuser who has not re-offended after fifteen years is unlikely to do so again. Id. Thus, under intermediate scrutiny, the statute addressed a substantial governmental interest and was tailored sufficiently to satisfy intermediate scrutiny.

Fisher argue [that] his harassment conviction occurred many years ago, and he has not committed any other crimes since that time. This argument is not meaningfully distinguishable from the one that we rejected in Chovan, and we reject it here as well.

Fisher [also] argues that section 922(g)(9) is unconstitutional as applied to him because Hawaii law provides for only one of the four restoration mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial pardon. [T]his second argument is not foreclosed by Chovan [Footnote: [I]n Chovan, we applied intermediate rather than strict judicial scrutiny in part because section 922(g)(9)s burden on Second Amendment rights was lightened by [the availability of mechanisms for restoration such as expungement or civil rights restoration]. Id. at 1138; see also id. at 1151 (Bea, J., concurring) (concluding that section 922(g)(9) was narrowly tailored to a compelling government interest in part because of the restoration mechanisms listed in section 921(a)(33)(B)(ii)).] [But] we decline to address it here.

Fisher concedes that he has not applied for a gubernatorial pardon for his 1997 conviction. Thus, Fisher has failed to avail himself of the one restoration mechanism that is available to him under Hawaii law, and he is in no position to argue that Hawaiis restoration mechanisms are constitutionally insufficient. See In re Coleman, 560 F.3d 1000 (9th Cir. 2009) (Where a dispute hangs on future contingencies that may or may not occur, it may be too impermissibly speculative to present a justiciable controversy.).

Kozinski, circuit judge, ruminating:

A states procedure for restoring Second Amendment rights bears directly on the degree to which the state encumbers those rights. Thus, despite defendants and amicis furious protestations to the contrary, we must consider Hawaiis available restoration procedures. Our modern Second Amendment jurisprudence trains its sights on the degree to which the state burdens the right and whether that burden is tailored to the states goal. Whether a state has a procedure for restoring Second Amendment rights plainly affects both the weight of the burden and our measure of its tailoring.

Criminal punishment, of course, always involves the deprivation of rights, but such deprivations can still raise constitutional concerns. The extent of the deprivation matters. Most recently, for example, federal courts have looked skeptically at lifelong restrictions on sex offenders Internet access. While restrictions on each right have their own distinctive history and restrictions on the Second Amendment are no exception it is unsurprising that we might look askance at a states permanent restriction on a misdemeanants right to bear arms.

Hawaiis procedure for restoring Second Amendment rights is notably slender: The governor can pardon someone. But gubernatorial clemency is without constraint; as Blackstone put it, an executives mercy springs from a court of equity in his own breast.

This unbounded discretion sits in uneasy tension with how rights function. A right is a check on state power, a check that loses its force when it exists at the mercy of the state. Government whim is the last refuge of a precarious right. And while Fishers case gives us no occasion to seek better refuge, others will.

In other contexts, we dont let constitutional rights hinge on unbounded discretion; the Supreme Court has told us, for example, that [t]he First Amendment prohibits the vesting of such unbridled discretion in a government official. Despite what some may continue to hope, the Supreme Court seems unlikely to reconsider Heller. The time has come to treat the Second Amendment as a real constitutional right. Its here to stay.

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'The time has come to treat the Second Amendment as a real constitutional right' - Washington Post

Brussels chiefs urgethe Chinese to do more to stop rubber boats falling into the hands of traffickersin the Med

THE EU has blamed China for fuelling the migrant crisis by failing to clamp down on sales of inflatable dinghies.

Brussels chiefs urged the Chinese to do more to stop rubber boats made there falling into the hands of people smugglers.

Getty Images

The traffickers have packed migrants into hundreds of the boats for treacherous journeys across the Med.

Dimitris Avramopoulos, EU commissioner for migration, said: China can help and support the EU in its fight against migrant smugglers.

I requested the support and cooperation from the Chinese authorities in order to track down this business and dismantle it.

Getty Images

EPA

Because what they produce is not serving the common good of the country.

The comments followed a meeting with Chinas public security minister Guo Shengkun.

They come as Brussels braces itself for another harrowing spike in numbers of migrants desperate to reach Europe as the weather improves.

More than 1.5million refugees and migrants have made their way to Europe since 2015.

So far this year, more than 1,000 migrants are thought to have died in waters between Libya and Italy.

Some 37,000 have been rescued and brought to Italy.

Last year Italian coastguards recovered more than a thousand boats packed with an average of 122 passengers.

Reuters

Separately Austria said it wanted to change the rules governing the EUs passport free Schengen zone to extend temporary customs controls due to expire later this year.

Brussels has told EU member states a six-month extension from May must be the final one.

Austria, Denmark, Germany and Sweden introduced the checks in 2015 in a desperate bid to tackle the migrant crisis.

Read more from the original source:
EU blames China for fuelling migrant crisis by failing to stop sales of inflatable DINGHIES to people smugglers - The Sun

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The Porte de Le Chapelle migrant camp is the largest outdoor makeshift camp in the French capital and is home to several hundred migrants, most of whom come from African countries like Sudan, Eritrea, and Nigeria.

Breitbart London spoke to several of the migrants at the camp, and all of them blamed the French government and Europe for their situation, demanding documentation and access to welfare.

Rolando, 25, said he had only come to Paris two months ago through West Africa and Libya taking a six-day sea voyage to eventually land in Italy. Wearing a Lonsdale tracksuit, the young Nigerian said he had taken a six-month course in international relations and wanted to start a family in France.

He said fighting between migrants was normal, though the police presence that day was increased due to a lorry having overturned next to the camp. Last month, a mass brawlbroke out during food distribution at the camp involving 50 migrants which ended with one man being seriously injured.

Rolando said he didnt like the French people, saying: They prefer seeing us on the streets suffering. I observe people passing by, whenever they gazed at us they would be smiling! As if they are happy seeing us suffering, you understand?

He went on to say: We blame them, for what they did to Africa! Lets assume that they did not spoil our country, you wouldnt have seen me here.

According to Rolando, the terrorist organisations attacking his country like Boko Haram were created by the British spy agency MI6. Our generation are smarter. A white man can not come and deceive me, he said.

Many of the migrants said they were hungry, though charities like the group Utopia 56 often deliver food to the camps in Paris and elsewhere in France. When asked about these pro-migrant NGOs one 32-year-old said: They are bullshit. They deliver water and you know. We dont need nothing, and said hewanted documents from the government instead.

Formerly, the main migrant camp was located near the Stalingrad metro station, which saw mass brawls between the hundreds of migrants who lived there late last year. The former camp has since been cleared by police and the area fenced off to prevent migrants from camping there again.

Stalingrad Metro Station in Paris, site of the former migrant camp. Photo: Chris Tomlinson/Breitbart London

The migrants also said there were more people coming to the camp by the day. Anti-mass migration French presidential candidate Marine Le Pen has promised to close the borders of France to prevent further migration. Ms. Le Pen also said she will get France out of the European Unions open-borders Schengen zone and has promised a referendumon EU membership itself.

Le Pen has been gaining ground on her pro-EU rival Emmanuel Macron in recent polls going into the second round of the French election on 7 May.

Follow Chris Tomlinson on Twitter at @TomlinsonCJor email at ctomlinson@breitbart.com

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Exclusive: Paris Migrants 'Blame Europe' for the Migrant Crisis - Breitbart News

Homeland Security has built up a backlog of more than 1.2 million illegal immigrants who it believes have overstayed visas but managed to arrest only about 3,400 of them, according to the most recent data, which works out to a rate of about 1 in every 350 lawbreakers.

That is far worse than the rate for those who crossed the border illegally, and it means criminals, people engaged in narcoterrorism and other national security risks are left to run free in the U.S., the Homeland Security inspector general said in a report Thursday.

Federal agents have trouble tracking down the criminals because the government still doesnt monitor departures, meaning it cant be certain whether those who came on tourist, business or student visas leave when they are supposed to.

Officers have to check as many as 27 in-house systems, in addition to state databases, to try to guess whether someone has left. Even then, they can make catastrophic mistakes when it wrongly appears that a visitor has left the country.

Such false departure information resulted in [deportation] officers closing visa overstay investigations of dangerous individuals, such as suspected criminals, who were actually still in the United States and could pose a threat to national security, the investigators said in the report. For example, an ERO officer stated that a suspect under investigation was listed as having left the country, but had given his ticket to a family member and was still residing in the United States.

Visa overstays, as they are called, have become an increasing focus of the immigration debate. As the flow of illegal border crossings declines, an increasing percentage of those in the country illegally are travelers who came on business, tourist or student visas but didnt leave when their time was up.

Several of the Sept. 11, 2001, hijackers were overstays.

Homeland Security has struggled to get a handle on the situation, or even to figure out how bad it is.

A report last year looking at just a portion of visas calculated that more than 500,000 visitors overstayed in 2015. The total backlog grew to more than 1.2 million, the inspector general said.

Meanwhile, U.S. Immigration and Customs Enforcement officers arrested only 3,402 potential overstays in 2015.

In its official response, ICE said it is trying to do a better job of calculating the number of visa overstays.

President Trump has pushed the Homeland Security Department to finish the system that would track departures, and tests are being run at Hartsfield-Jackson International Airport in Atlanta.

The department also plans to release its next overstay report soon. That report will cover almost all visa categories, so the government will have a better sense for how bad the problem is.

But Rep. Bob Goodlatte, chairman of the House Judiciary Committee, said that until the government tracks all departures, it wont know whats going on.

Visa security is a matter of national security, and it is imperative that we know who is coming to our country and when they leave so that we protect American citizens and our interests, the Virginia Republican said.

Congress demanded a biometric entry-exit system more than 20 years ago, but administrations in both parties have failed to deliver, saying that airports arent configured to check departures and that the land ports of entry are an even bigger logistical hurdle.

Mr. Goodlatte said he expects Mr. Trumps focus on immigration to finally push Homeland Security to finish the job.

Until then, officers will waste time on bogus leads, the inspector generals report said. The data are so unreliable that officers and agents often end up finding an overstay still in the country who the systems said already had left, or spend time trying to track down someone who did leave the country or obtained legal status.

An ICE officer estimated that he spent more than 50 hours on a single suspect, only to find the individual had applied for [an immigration] benefit and should not have been categorized as an overstay, the audit said.

Read more here:
DHS catches less than 1 percent of illegal immigrant 'overstays': Audit - Washington Times

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His comments came during an event on Central America hosted by the international affairs think tank Atlantic Council on Thursday.

Retired Marine Gen. Kelly noted that illegal immigration along the U.S.-Mexico border has dropped by an estimated 70 percent under President Donald Trumps administration.

He also mentioned that the Trump administration is planning to invest money in the economies of Central American countries to provide potential illegal migrants with a reason to stay home where their family and friends are.

The message [to would be illegal immigrants] is if you get here and if you paid the traffickers you will probably get here, but you will be turned around within our laws relatively quickly and returned, declared Kelly. Its not worth wasting your money.

If that message remains, which it will, and we help the economies, I think its a win-win for both the region as well as for the United States, he added.

Kelly pointed out that, although the majority of illegal migrants come to the U.S. in search of economic opportunities, a substantial portion of young undocumented people is involved in gang-related criminal activities.

The overwhelming number of people that come are good, decent people looking for a better way to make a living, noted the DHS chief.

An awful lot of them, not a majority by no means these are good people as a group but because of a lot of different reasons, the young men are often times in relatively large numbers drawn into crime, he later said. Not all of them but some of them. MS-13 is full of people that have come here from that part [Central America] of the world and are criminals.

An awful lot of the young women get taken into the other kinds of trade sex trade that kind of thing, not all of them, but many of them, he also said.

U.S. Attorney General Jeff Sessions recently vowed to eradicate the savage MS-13 transnational criminal gang.

We are targeting you, said Sessions during a speech in New York.

The MS-13 motto is kill, rape, and control, he added. I have a message to the gangs that are targeting our young people: We are targeting you. We are coming after you.

This year, U.S. Southern Command (SOUTHCOM), charged with overseeing American military activity in most of Latin America, warned that jihadist groups are radicalizing and recruiting people in Central American regions awash with street gangs, namely MS-13.

Citing the FBI, SOUTHCOM reported that MS-13 is believed to be operating in 42 U.S. states, with a significant presence in Houston, Long Island, Charlotte, and Washington, DC.

According to a recent poll, nearly 50 percent of those surveyed support designating MS-13 as a terrorist organization.

The government of El Salvador, the gangs stronghold in Central America, has already deemed the group a terrorist organization.

In the United States, MS-13 has been officially listed as a transnational criminal organization, the only street gang to the list.

Retired Gen. Kelly served as SOUTHCOM commander.

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DHS Secretary to Illegal Aliens: 'Not Worth Wasting Your Money' on Traffickers, You Will Be 'Returned' - Breitbart News