On 10 October 2015, bombs killed scores of people at a pro-Kurdish peace rally in Ankara, in Turkey.Witnesses said the two explosions happened seconds apart shortly after 10 a.m. as leftists, labour unions and other civic groups, gathered for a march to protest over the deaths of hundreds since conflict resumed between security forces and the Kurdistan Workers Party (PKK) in the mainly Kurdish southeast.
Turkey YouTube Ban: Full Transcript of Leaked Syria 'War' Conversation Between Erdogan Officials
Turkey's courts have blocked access to Twitter a little over a week before elections as Prime Minister Tayyip Erdogan battles a corruption scandalReutersTurkish Prime Minister Recep Tayyip Erdogan's ban of YouTube occurred after a conversation was leaked between Head of Turkish Intelligence Hakan Fidan and Turkish Foreign Minister Ahmet DavutoÄlu that he wanted removed from the video-sharing website.
The leaked call details Erdogan's thoughts that an attack on Syria "must be seen as an opportunity for us [Turkey]".
In the conversation, intelligence chief Fidan says that he will send four men from Syria to attack Turkey to "make up a cause of war".
Deputy Chief of Staff Lt. Gen. YaÅar G¼ler replies that Fidan's projected actions are "a direct cause of war...what you're going to do is a direct cause of war".
Turkey's foreign ministry said the leaked recording of top officials discussing the Syria operation was "partially manipulated" and is a "wretched attack" on national security.
In the leaked video, Fidan is discussing with DavutoÄlu, G¼ler and other officials a possible operation within Syria to secure the tomb of Suleyman Shah, grandfather of the founder of the Ottoman empire.
Full transcript (translated by @castizbey):
Ahmet DavutoÄlu:"Prime Minister said that in current conjuncture, this attack (on Suleiman Shah Tomb) must be seen as an opportunity for us."
Hakan Fidan:"I'll send 4 men from Syria, if that's what it takes. I'll make up a cause of war by ordering a missile attack on Turkey; we can also prepare an attack on Suleiman Shah Tomb if necessary."
Feridun SinirlioÄlu:"Our national security has become a common, cheap domestic policy outfit."
YaÅar G¼ler:"It's a direct cause of war. I mean, what're going to do is a direct cause of war."--------FIRST SCREEN:Ahmet DavutoÄlu: I couldn't entirely understand the other thing; what exactly does our foreign ministry supposed to do? No, I'm not talking about the thing. There are other things we're supposed to do. If we decide on this, we are to notify the United Nations, the Istanbul Consulate of the Syrian regime, right?
Feridun SinirlioÄlu: But if we decide on an operation in there, it should create a shocking effect. I mean, if we are going to do so. I don't know what we're going to do, but regardless of what we decide, I don't think it'd be appropriate to notify anyone beforehand.
Ahmet DavutoÄlu: OK, but we're gonna have to prepare somehow. To avoid any shorts on regarding international law. I just realised when I was talking to the president (Abdullah G¼l), if the Turkish tanks go in there, it means we're in there in any case, right?
YaÅar G¼ler: It means we're in, yes.
Ahmet DavutoÄlu: Yeah, but there's a difference between going in with aircraft and going in with tanks...
SECOND SCREEN:YaÅar G¼ler: Maybe we can tell the Syrian consulate general that, ISIL is currently working alongside the regime, and that place is Turkish land. We should definitely...
Ahmet DavutoÄlu: But we have already said that, sent them several diplomatic notes.
YaÅar G¼ler: To Syria...
Feridun SinirlioÄlu: That's right.
Ahmet DavutoÄlu: Yes, we've sent them countless times. Therefore, I'd like to know what our Chief of Staff's expects from our ministry.
YaÅar G¼ler: Maybe his intent was to say that, I don't really know, he met with Mr. Fidan.
Hakan Fidan: Well, he did mention that part but we didn't go into any further details.
YaÅar G¼ler: Maybe that was what he meant... A diplomatic note to Syria?
Hakan Fidan: Maybe the Foreign Ministry is assigned with coordination...
THIRD SCREEN:Ahmet DavutoÄlu: I mean, I could coordinate the diplomacy but civil war, the military...
Feridun SinirlioÄlu: That's what I told back there. For one thing, the situation is different. An operation on ISIL has solid ground on international law. We're going to portray this is Al-Qaeda, there's no distress there if it's a matter regarding Al-Qaeda. And if it comes to defending Suleiman Shah Tomb, that's a matter of protecting our land.
YaÅar G¼ler: We don't have any problems with that.
Hakan Fidan: Second after it happens, it'll cause a great internal commotion (several bombing events is bound to happen within). The border is not under control...
Feridun SinirlioÄlu:I mean, yes, the bombings are of course going to happen. But I remember our talk from 3 years ago...
YaÅar G¼ler: Mr. Fidan should urgently receive back-up and we need to help him supply guns and ammo to rebels. We need to speak with the minister. Our Interior Minister, our Defense Minister. We need to talk about this and reach a resolution sir.
Ahmet DavutoÄlu: How did we get special forces into action when there was a threat in Northern Iraq? We should have done so in there, too. We should have trained those men. We should have sent men. Anyway, we can't do that, we can only do what diplomacy...
Feridun SinirlioÄlu: I told you back then, for God's sake, General, you know how we managed to get those tanks in, you were there.
YaÅar G¼ler: What, you mean our stuff?
Feridun SinirlioÄlu: Yes, how do you think we've managed to rally our tanks into Iraq? How? How did we manage to get special forces, the battalions in? I was involved in that. Let me be clear, there was no government decision on that, we have managed that just with a single order.
FOURTH SCREEN:YaÅar G¼ler: Well, I agree with you. For one thing, we're not even discussing that. But there are different things that Syria can do right now.
Ahmet DavutoÄlu: General, the reason we're saying no to this operation is because we know about the capacity of those men.
YaÅar G¼ler: Look, sir, isn't MKE (Mechanical and Chemical Industry Corporation) at minister's bidding? Sir, I mean, Qatar is looking for ammo to buy in cash. Ready cash. So, why don't they just get it done? It's at Mr. Minister's command.
Ahmet DavutoÄlu: But there's the spot we can't act integratedly, we can't coordinate.
YaÅar G¼ler: Then, our Prime Minister can summon both Mr. Defence Minister and Mr. Minister at the same time. Then he can directly talk to them.
Ahmet DavutoÄlu: We, Mr. SiniroÄlu and I, have literally begged Mr. Prime Minster for a private meeting, we said that things were not looking so bright.
FIFTH SCREEN:YaÅar G¼ler: Also, it doesn't have to be a crowded meeting. Yourself, Mr. Defence Minister, Mr. Interior Minister and our Chief of Staff, the four of you are enough. There's no need for a crowd. Because, sir, the main need there is guns and ammo. Not even guns, mainly ammo. We've just talked about this, sir. Let's say we're building an army down there, 1000 strong. If we get them into that war without previously storing a minimum of 6-months' worth of ammo, these men will return to us after two months.
Ahmet DavutoÄlu: They're back already.
YaÅar G¼ler: They'll return to us, sir.
Ahmet DavutoÄlu: They've came back from... What was it? obanbey.
YaÅar G¼ler: Yes, indeed, sir. This matter can't be just a burden on Mr. Fidan's shoulders as it is now. It's unacceptable. I mean, we can't understand this. Why?
SIXTH SCREEN:Ahmet DavutoÄlu: That evening we'd reached a resolution. And I thought that things were taking a turn for the good. Our...
Feridun SinirlioÄlu: We issued the MGK (National Security Council) resolution the day after. Then we talked with the general...
Ahmet DavutoÄlu: And the other forces really do a good follow up on this weakness of ours. You say that you're going to capture this place, and that men being there constitutes a risk factor. You pull them back. You capture the place. You reinforce it and send in your troops again.
Ahmet DavutoÄlu: Right? That's how I interpret it. But after the evacuation, this is not a military necessity. It's a whole other thing.
SEVENTH SCREENFeridun SiniroÄlu: There are some serious shifts in global and regional geopolitics. It now can spread to other places. You said it yourself today, and others agreed... We're headed to a different game now. We should be able to see those. That ISIL and all that jazz, all those organisations are extremely open to manipulation. Having a region made up of organisations of similar nature will constitute a vital security risk for us. And when we first went into Northern Iraq, there was always the risk of PKK blowing up the place. If we thoroughly consider the risks and substantiate... As the general just said...
YaÅar G¼ler: Sir, when you were inside a moment ago, we were discussing just that. Openly. I mean, armed forces are a "tool" necessary for you in every turn.
Ahmet DavutoÄlu: Of course. I always tell the Prime Minister, in your absence, the same thing in academic jargon, you can't stay in those lands without hard power. Without hard power, there can be no soft power.
EIGTH SCREENYaÅar G¼ler: Sir.
Feridun SinirlioÄlu: The national security has been politicised. I don't remember anything like this in Turkish political history. It has become a matter of domestic policy. All talks we've done on defending our lands, our border security, our sovereign lands in there, they've all become a common, cheap domestic policy outfit.
YaÅar G¼ler: Exactly.
Feridun SiniroÄlu: That has never happened before. Unfortunately but...
YaÅar G¼ler: I mean, do even one of the opposition parties support you in such a high point of national security? Sir, is this a justifiable sense of national security?
Feridun SinirlioÄlu: I don't even remember such a period.
NINTH SCREEN:YaÅar G¼ler: In what matter can we be unified, if not a matter of national security of such importance? None.
Ahmet DavutoÄlu: The year 2012, we didn't do it 2011. If only we'd took serious action back then, even in the summer of 2012.
Feridun SinirlioÄlu: They were at their lowest back in 2012.
Ahmet DavutoÄlu: Internally, they were just like Libya. Who comes in and goes from power is not of any importance to us. But some things...
YaÅar G¼ler: Sir, to avoid any confusion, our need in 2011 was guns and ammo. In 2012, 2013 and today also. We're in the exact same point. We absolutely need to find this and secure that place.
Ahmet DavutoÄlu: Guns and ammo are not a big need for that place. Because we couldn't get the human factor in order...
Related
Tomb of Suleyman Shah - Wikipedia, the free encyclopedia
The Tomb of Suleyman Shah (Turkish: S¼leyman Åah T¼rbesi) is, according to legend, the grave (tomb, mausoleum) housing the relics of Suleyman Shah (c. 1178''1236), grandfather of Osman I (1258''1326), the founder of the Ottoman Empire. This legendary tomb has since 1236 had three locations, all in present-day Syria. From 1236 until 1973, its first location was near castle Qal'at Ja'bar in present-day Al-Raqqah Governorate, Syria.
Under the Treaty of Lausanne (1923), breaking up the Ottoman Empire into Turkey, Syria and other states, the tomb site at castle Qal'at Ja'bar remained the property of Turkey.
In 1973, when the area around castle Qal'at Ja'bar was due to be flooded under Lake Assad, the tomb by agreement between Turkey and Syria was moved 85 km northward but also on the Euphrates riverside and also in Syria, 27 km from the Turkish border.
In early 2015, during the Syrian Civil War, Turkey unilaterally moved the tomb again to a new site in Syria, about 180 meters from the Turkish border, 22 km (14 mi) west of Koban® and just north of the Syrian village of Ashme,[1] evacuating the approximately 40 Turkish soldiers guarding the tomb.[2] The Turkish government has stated that the relocation is temporary,[3] and that it does not constitute any change to the status of the tomb.[4][5]
Death of Suleyman Shah[edit]Suleyman Shah (c. 1178''1236) was the grandfather of Osman I (1258''1326), the founder of the Ottoman Empire. Suleyman Shah is believed to have drowned in the Euphrates river near castle Qal'at Ja'bar in present-day Al-Raqqah Governorate, Syria, and was according to legend buried near that castle, in a tomb.[6]
Legal status of tomb[edit]Article 9 of the Treaty of Ankara, signed by France and Turkey in 1921, states that the tomb of Suleyman Shah (at its first location) "shall remain, with its appurtenances, the property of Turkey, who may appoint guardians for it and may hoist the Turkish flag there".[7][8] According to the BBC, the site of the tomb by that Treaty was also Turkish territory,[8] but that is not written in the Treaty. This status quo was confirmed by Article 3 of the Treaty of Lausanne (1923).[9] Initially, an 11-man symbolic garrison of Turkish soldiers were guarding the tomb.[10]
The Protocol of 2003 between the Republic of Turkey and the Syrian Arab Republic regarding the Tomb of Suleyman Shah (at its second location) gave Turkey transit rights to the Tomb through Syrian territory, in order to maintain and carry out repairs at the Tomb.[11] Since 2014, the official position of Turkey appears to be that the land around the second location (1973''February 2015) of the tomb is or was the sovereign territory of Turkey.[3][12] Turkey required visitors to the site to carry passports.[13] However, there is no evidence to date that other countries, including Syria, have publicly supported this position.
The Syrian position is that the latest relocation of the tomb in February 2015 (to its third location) is a breach of the Treaty of Ankara.[14]
First relocation[edit]In 1973, the area around castle Qal'at Ja'bar, with the location of the tomb, was due to be flooded when the Tabqa Dam would create Lake Assad.
The tomb by agreement between Turkey and Syria then was moved to a new location at 36°38'²22'"N38°12'²27'"E>> / >>36.63944°N 38.20750°E>> / 36.63944; 38.20750 some 85 km (53 mi) northward[15] but also on the Euphrates riverside and also in Syria, 10 kilometres (6.2 mi) northwest of the town of Sarrin, in Aleppo Governorate, and some 27 km (17 mi) from the Turkish border.
Until February 2015, Turkey maintained at this site a small military presence as an honour guard.
Events during the Syrian Civil War[edit]On 5 August 2012, during the Syrian Civil War, the Turkish prime minister Recep Tayyip ErdoÄan stated that "The tomb of Suleyman Shah [in Syria] and the land surrounding it is our territory. We cannot ignore any unfavorable act against that monument, as it would be an attack on our territory, as well as an attack on NATO land... Everyone knows his duty, and will continue to do what is necessary".[16]
(Rumoured) threats of ISIL[edit]On 20 March 2014, Islamic State of Iraq and the Levant (ISIL) threatened to attack the tomb site unless the Turkish troops guarding it were withdrawn within three days.[17][8] The Turkish government reacted by saying it would retaliate against any such attack, and did not withdraw its guards.[17][18] But the threatened attack did not take place.[8] Due to (such) tensions, the garrison at the tomb was increased to 38 men, in 2014 or earlier.[10]
On 27 March 2014, recordings were released on YouTube of a conversation, probably recorded at then Turkish Foreign Minister Ahmet DavutoÄlu 's office on 13 March, purportedly involving Ahmet DavutoÄlu, Foreign Ministry Undersecretary Feridun SinirlioÄlu, then National Intelligence Organization (MÄ°T) head Hakan Fidan, and Deputy Chief of General Staff General YaÅar G¼ler, discussing possible Turkish intervention or incursion into Syria ahead of the Turkish local elections of 30 March.[19][20]
DavutoÄlu is heard saying on the tape: ''Prime Minister [= Erdogan] said that in current conjuncture, this attack [on Suleiman Shah Tomb] must be seen as an opportunity for us''. And Hakan Fidan answering: ''I'll send 4 men from Syria, if that's what it takes. I'll make up a cause of war by ordering a missile attack on Turkey; we can also prepare an attack on Suleiman Shah Tomb if necessary.''[21]
Between June and September 2014, while ISIL held 49 Turkish consulate personnel in Mosul hostage (see Fall of Mosul#Aftermath), there was a rumour that Turkey had agreed to disengage from the S¼leyman Shah Tomb in exchange for the hostages' release.[10]
On 30 September 2014, Turkish Deputy Prime Minister B¼lent Arın§ said that ISIL militants were advancing on the Suleyman Shah tomb.[18] An earlier report of pro-government newspaper Yeni Åafak, citing anonymous sources, had mentioned 1,100 ISIL militants surrounding the tomb.[18] But on 1 October, President ErdoÄan denied that ISIL had encircled the tomb.[22]
On 2 October 2014, Turkish Parliament authorized the use of the Turkish military force against ISIL. One argument mentioned in the parliamentary debate was the increasing security risks to the S¼leyman Shah Tomb.[23]
Second relocation (2015)[edit]Early 2015, according to Al Jazeera, the tomb was surrounded by ISIL.[10] The BBC however stated, that after having driven ISIL out of Koban® in January 2015, the Kurdish People's Protection Units (YPG) and Syrian rebels took control of several villages surrounding the Suleyman Shah tomb.[8]
In the night of 21''22 February 2015, a convoy of 572 Turkish troops in 39 tanks and 57 armoured vehicles entered Syria through Koban® to evacuate[8] the 38-man Turkish military garrison[10] guarding the Suleyman Shah tomb and move the remains of Suleyman Shah to a different site.[8] Those remains were moved to a site in Syria closer to the border in an area under Turkish military control, after which the rest of the old mausoleum was demolished.[8] One soldier died in the overnight raid.[8][2]
ISIL did not impede this Turkish operation.[10] A local Syrian Kurdish official said the Kurds had allowed the Turkish forces to cross their territory, but Turkish Prime Minister Davutoglu denied such cooperation.[10] After this Turkish evacuation, entitled 'Operation Shah Euphrates', Al Jazeera assumed the area to be ''most probably'' under full ISIL control.[10]
The tomb is since then located in Turkish-controlled territory, about 180 meters inside Syria,[1] just north of the Syrian village of Ashme[24] and less than 2 km (1.2 mi) southeast of the Turkish village of Esmesi (Esmeler or Esme or Eshme) in the southernmost Turkish Birecik District of Åanliurfa,[2][25] 5 km (3.1 mi) east of the Euphrates, 10 km (6.2 mi) northeast of the Syrian town of Jarabulus[26] and 22 km (14 mi) west of Koban®.[2]
The Turkish Foreign Minister has stated that the relocation is only a temporary measure[3] and that it does not constitute any change to the status of the tomb.[5][4] The Syrian government said the raid was an act of "flagrant aggression" and that it would hold Ankara responsible for its repercussions.[27]
References[edit]^ ab"Minister invites Turks to visit planned tomb site in Syria". H¼rriyet Daily News. Retrieved 13 March 2015. ^ abcd"Turkish military enters Syria to evacuate soldiers, relocate tomb". Reuters. Retrieved 22 February 2015. ^ abc"Evacuated military post in Syria still on Turkish land: FM". Xinhua. Retrieved 22 February 2015. ^ abhttp://www.mfa.gov.tr/no_-70_-22-february-2015_-press-release-regarding-the-temporary-relocation-of-the-tomb-of-s%C3%BCleyman-%C5%9Fah-and-memorial-outpost.en.mfa^ abhttp://www.mfa.gov.tr/no_-98_-27-march-2014_-regarding-the-illegal-exposure-of-certain-audio-records-with-regard-to-the-tomb-of--suleymansah-memorial.en.mfa^Sourdel, D. (2009). "á¸Jabar or Ḳalat á¸Jabar". In P. Bearman, Th. Bianquis, C.E. Bosworth; et al. Encyclopaedia of Islam (2nd ed.). Brill online. ^"Franco-Turkish agreement of Ankara"(PDF) (in French and English). Retrieved 8 August 2014. ^ abcdefghi"Turkey enters Syria to evacuate Suleyman Shah tomb". BBC. 22 February 2015. Retrieved 9 September 2015. ^Treaty of Lausanne. Signed 24 July, 1923. Retrieved 11 September 2015.^ abcdefgh"The truth about Operation Shah Euphrates". Al Jazeera. 23 February 2015. Retrieved 9 September 2015. ^http://www2.tbmm.gov.tr/d22/1/1-0551.pdf^"Turkey to defend Syria exclave at all costs: President". Anadolu Agency. 2014-10-03. Retrieved 2014-10-18. ^Cagaptay, Soner (9 April 2012). "A Piece of Turkey Lies in the Middle of the Syrian Desert". CNN Global Public Square blog. Retrieved 27 February 2015 '' via The Washington Institute. ^Said, Haifa (2015-02-22). "Turkey's transgression into Syrian territory proves its connection with ISIS, Foreign Ministry says". Syrian Arab News Agency. Retrieved 2015-02-22. ^Burns, R. (1999). Monuments of Syria. An historical guide. London: I.B. Tauris. pp. 180''181. ISBN 1-86064-244-6. ^Ankara warns against attack on tomb, H¼rriyet Daily News, 7 August 2012.^ abErdoÄan: Attacking tomb of S¼leyman Åah means attacking Turkey, Today's Zaman, 26 March 2014.^ abc"Government confirms ISIL militants advancing on Turkish tomb in Syria". TodaysZaman. 30 September 2014. Retrieved 10 September 2015. ^'Ankara Bar Association challenges YouTube ban'. Today's Zaman, 28 March 2014. Retrieved 11 September 2015.^'Turkish journalist detained over leak of key Syria meeting'. Today's Zaman, 29 March 2014. Retrieved 11 September 2015.^YouTube ban: How Turkish officials conspired to stage Syria attack to provoke war RT, 28 March 2014. Retrieved 11 September 2015.^"President ErdoÄan denies claims ISIS encircled Suleiman Shah Tomb '-- Politics '-- Daily Sabah". dailysabah.com. 1 October 2014. Retrieved 8 September 2015. ^Turkish lawmakers OK military action against ISIS CNN, 3 October 2014. Retrieved 11 September 2015.^The name of Ashme is spelled normally EÅme in Turkish media and often Esme in English-language media.^"S¼leyman Åah'ın yeni t¼rbesi i§in hummalı §alıÅma". H¼rriyet. 24 February 2015. Retrieved 15 March 2015. ^"Meaning and Possible Consequences of Shah Euphrates Operation". ORSAM. 28 February 2015. Retrieved 13 March 2015. ^"Syria condemns Turkey's 'flagrant aggression' in north". The Daily Star Newspaper '-- Lebanon. Retrieved 4 March 2015.
Incirlik Air Base - Wikipedia, the free encyclopedia
Incirlik Air Base (Turkish: Ä°ncirlik Hava 'ss¼) (IATA: UAB, ICAO: LTAG) is an air base, located near Ä°ncirlik, Turkey. Incirlik Air Base is located 8 kilometers (5 miles) east[1] of Adana, Turkey, the fifth largest city in the country, and is 56 kilometers (35 miles) inland from the Mediterranean Sea. The United States Air Force and the Turkish Air Force are the primary users of the air base, although it is also used by the Royal Air Force.
Incirlik Air Base is the home of the 10th Air Wing (Ana Jet 's or AJ') of the 2nd Air Force Command (Hava Kuvvet KomutanlıÄı) of the Turkish Air Force (T¼rk Hava Kuvvetleri). Other wings of this command are located in Merzifon (LTAP), Malatya/Erha§ (LTAT) and Diyarbakır (LTCC).[2]
Incirlik Air Base has a U.S. Air Force complement of about five thousand airmen, with several hundred airmen from the Royal Air Force and Turkish Air Force also present, as of late 2002. The primary unit stationed at Incirlik Air Base is the 39th Air Base Wing (39 ABW) of the U.S. Air Force. Incirlik Air Base has one 3,048 m (10,000 ft)-long runway,[1][3] located among about 57 Hardened aircraft shelters. The base is one of six NATO sites in Europe which hold tactical nuclear weapons.[4]
Etymology[edit]The word "Incirlik" (pronounced [indÊ'iɾlik]) means "fig tree grove", in the Turkish language.
History[edit]The decision to build the Incirlik Air Base was made during the Second Cairo Conference in December 1943, but construction works began after the end of the Second World War. The U.S. Army Corps of Engineers began construction of the Incirlik Air Base in the spring of 1951. The U.S. Air Force initially planned to use the base as an emergency staging and recovery site for medium and heavy bombers. The Turkish General Staff and the U.S. Air Force signed a joint-use agreement for the new Air Base in December 1954. On 21 February 1955, the Air Base was officially named Adana Air Base, with the 7216th Air Base Squadron as the host unit. This Air Base was renamed the "Incirlik Air Base" on 28 February 1958.
Reconnaissance missions from Incirlik[edit]Even the early years of its existence proved the value of the presence of the Incirlik Air Base in Turkey, not only to counter the threat of the communist Soviet Union during the Cold War, but also to responding to crises in the Middle East, such as in Lebanon and Israel.
Project 119L, a public U.S. Air Force weather balloon launching program served as a cover story (misinformation) for the true objective of the Incirlik Air Base: to mount strategic reconnaissance missions over the Soviet Union. Under the codename "GENETRIX", these balloon launches were carried out beginning on February 1956. Following some weather balloon operations, pilots began flying American LockheedU-2 airplane reconnaissance missions as part of "Operation Overflight" by late 1957, including on nonstop flights back and forth between Incirlik and a NATO Air Base at the Norwegian town Bod¸.
In addition, U.S. Air Force Boeing RB-47H Stratojets and U.S. NavyP4M-1Q Mercator and A3D-1Q Skywarrior reconnaissance flights operated from here into Soviet-claimed air space over the Black Sea and the Caspian Sea, and also as far east as Afghanistan. The Incirlik Air Base was the main U-2 flight base in this entire region until 1 May 1960, when a volley of about 14 Soviet SA-2surface-to-air missiles shot down the U-2 of the American CIA pilot Francis Gary Powers near Sverdlovsk, Russia, a test site in the Soviet Union's Intercontinental Ballistic Missile (ICBM) program.
Lebanon crisis[edit]The Lebanon crisis of 1958 arose during the summer of 1958, prompting the PresidentDwight D. Eisenhower of the United States to order the U.S. Air Force Tactical Air Command "Composite Air Strike Force Bravo" (several squadrons) to fly immediately from the United States to Incirlik. This Composite Air Strike Force consisted of F-100 Super Sabres, B-57 Canberras, RF-101 Voodoos, B-66 Destroyers, along with the supporting WB-66 weather planes. These aircraft and their supporting airmen overwhelmed the facilities of the Incirlik Air Base '' which were also supporting air transport planes that carried a U.S. Armyinfantrybattalion from Germany to Lebanon. In the event, the U.S. Army and the U.S. Marine Corps were not involved in ground fighting. The U.S. Air Force warplanes flew non-combat missions to cover allied troop movements, to carry out a show-of-force flights over Lebanon, including over Beirut, aerial reconnaissance flights, and true news and propaganda leaflet drops on Lebanon.
As a part of an effort to bring units with combat experience into the region of Turkey, the U.S. Air Forces in Europe (USAFE) inactivated the 7216th Air Base Squadron, which had been promoted to an Air Base Group, and activated the 39th Tactical Group in its place at Incirlik on 1 April 1966. This Air Base Group assumed control of the permanent Air Force support units there, and it hosted the rotational Air Force squadrons that conducted training operations, and also maintained a NATO deterrent air force at the Incirlik Air Base.
As a training site[edit]After the Lebanon crisis, the Tactical Air Command deployed F-100 fighter squadrons on 100-day rotations to Incirlik from the United States. The flying mission at Incirlik further diversified in 1970 when the Turkish Air Force agreed to allow the U.S. Air Forces in Europe to use its air-to-ground missile testing range at 240 km northwest Konya, providing a suitable training area for the warplane squadrons deployed to Incirlik. These units also conducted training at Incirlik's offshore air-to-air missile range over the Mediterranean Sea.
Throughout the 1970s and 1980s, except during the Cyprus dispute, many types of U.S. Air Force warplanes, including F-4 Phantom IIs, F-15 Eagles, F-16 Fighting Falcons, F-111 Aardvarks, A-10 Thunderbolt IIs, and the C-130 Hercules were based at Incirlik.
Embargo[edit]In mid-1975, the Turkish government announced that all U.S. military bases in Turkey would be closed and transferred to the Turkish Air Force. This action was in response to an arms embargo that the United States Congress imposed on Turkey for using American-supplied equipment during the Turkish invasion of Cyprus in 1974. Only Incirlik Air Base and Ä°zmir Air Base remained open due to their NATO responsibilities, but all non-NATO activities at these locations were suspended.
After Congress lifted the embargo in September 1978, and also restored military and naval assistance to Turkey, normal operations resumed in Turkey, and the United States and Turkey signed a "Defense and Economic Cooperation Agreement" (DECA) on 29 March 1980. After signing the DECA, the USAFE initiated the "Turkey Catch-up Plan" to improve the quality-of-life of airmen stationed at Incirlik. One of the major projects was a completely new base housing complex for airmen and officers.
First Gulf War, Humanitarian Relief, and Operation Northern Watch[edit]After Iraq's 1990 invasion of neighboring Kuwait, the 7440th Composite Wing (Provisional) assumed operational control of the 39th Tactical Group. The 7440th was the air component of Joint Task Force Proven Force, which eventually controlled 140 aircraft and opened a northern front, forcing Iraq to split its defenses between the north and the south, where the main thrust of coalition attacks originated as part of Operation "Desert Storm". Following the war, Incirlik hosted "Combined Task Force Provide Comfort", which oversaw Operation Provide Comfort (OPC), the effort to provide humanitarian relief to millions of Kurdishrefugees in northern Iraq.
Between 1992 and 1997 Vickers VC10s from No. 101 Squadron RAF were based here for Operation Warden over Iraq.[5]
The 39th TACG was redesignated the 39th Wing on 1 October 1993 and restructured as a standard Air Force objective wing.
The U.S. State Department's "Operation Quick Transit" evacuated thousands of Kurds from northern Iraq late in 1996. The wing provided logistical support in Turkey to this operation, which signaled the end of the humanitarian aspect of Operation Provide Comfort (OPC). OPC ended 31 December 1996, and Operation Northern Watch (ONW) took its place 1 January 1997 with the task to enforce the U.N.-sanctioned no-fly zone north of the 36th parallel in Iraq.
The 39th Air and Space Expeditionary Wing was activated at Incirlik AB on 15 September 1997, to support and command USAF assets deployed to Incirlik supporting ONW, while Incirlik's tent city, Hodja Village, became the USAF's largest such "temporary" facility.
From 1994, the Turkish Air Force began receiving KC-135R-CRAG Stratotanker aerial refueling tankers. The seven aircraft are operated by the 101st Squadron, stationed at Incirlik.
September 11, 2001 attacks[edit]In response to the September 11, 2001 attacks, Operation Enduring Freedom began in October 2001. Incirlik served as a main hub for missions in support for the war in Afghanistan, including humanitarian airlift operations, MC-130 special operations missions, KC-135 refueling missions and sustainment operations for deployed forces. The aerial port managed a 6-fold increase in airflow during the height of OEF. When the main bases in Afghanistan ( Bagram Airfield ) and the Uzbekistan air base ( Karshi-Khanabad Air Base ) were in use the Incirlik's airflow supporting OEF decreased to a baseline sustainment level.
Iraq War[edit]ONW ended with the start of the Iraq War on March 19, 2003. ONW flew its last patrol on 17 March 2003, and closed a successful 12-year mission to contain the Iraqi military and inactivated 1 May 2003. The 39th ASEW was also inactivated, effective 1 May 2003. The wing was completely inactivated on 16 July 2003 and the 39th Air Base Group was activated in its place.
On 19 August 2003, the first rotation of deployed KC-135 Stratotankers and airmen arrived at Incirlik to support various operations in response to the 11 September 2001 attacks as well as the post-invasion reconstruction of Iraq and the ensuing insurgency.
On 6 January 2004, more than 300 U.S. Army soldiers of what would become thousands transited through Incirlik as the first stop back to their home post after spending almost a year in Iraq. Incirlik was part of what was described as the largest troop movement in U.S. history. Incirlik provided soldiers with a cot, warm location, entertainment and food for a few hours outside of a hostile war zone.
On March 12, 2004, the 39th Air Base Group inactivated and the 39th Air Base Wing activated to provide the best mix of required support and, as new mission requirements emerge, to shoulder the burden and better contribute in the global war on terrorism.
2005 Kashmir earthquake humanitarian relief[edit]Incirlik played a bridge role by providing support in the relief operation started after the 2005 Kashmir earthquake on 8 October 2005. With the help of Turkish and American airmen, five C-130 Hercules cargo planes from Air Bases in Italy, Britain, Greece, and France flew urgently needed supplies including 10,000 tents from the warehouse of U.N. High Commissioner for Refugees in Ä°skenderun, Turkey to Islamabad, Pakistan on 19 October.
2006 Hezbollah''Israel War[edit]During the brief War between Hezbollah and Israel in July 2006, the Incirlik Air Base provided solace to Americans who had been evacuated by U.S. Navy warships from Beirut, Lebanon to Mersin, Turkey.
2010 Land Claims Lawsuits[edit]In 2010, three Armenian Americans filed a lawsuit against the Republic of Turkey and two banks for compensation of 122 acres (0.49 km2) of land in the Adana region of Turkey, where Incirlik Air Base currently stands.[6] An American court accepted the case and granted Turkey 21 days to respond to the lawsuit.[7] The defendant banks in Turkey requested from the court to extend the deadline for a response until September 2011. The court accepted the extension and the case is still ongoing.[8]
2015 operations against the Islamic State of Iraq and the Levant[edit]On 13 October 2014, it was rumored that the Turkish Government approved the use of Incirlik Air base to support operations against the Islamic State[9] but this was later denied.[10] On 23 July 2015, it was confirmed that the Turkish Government would begin allowing USAF UAVs and USAF combat planes to fly combat sorties against ISIL out of Incirlik Air base.[11] Ankara formally signed a deal July 29, 2015 with the United States over the use of Turkey's Incirlik air base in the U.S.-led coalition's campaign against the Islamic State, the Turkish Foreign Ministry said, Hurriyet reported. The agreement covers only the fight against the Islamic State and does not include air support for allied Kurdish fighters in northern Syria, a spokesman for the ministry said.[12]
Facilities[edit]Following facilities exist for the service people and their family members:
AFN-Incirlik '' Department of Defense unit providing American Forces Radio and Television Service programmingIncirlik American SchoolIncirlik Education Center run by University of Maryland University College for 12 courses per term in departments such as: English, History, Psychology, Mathematics, Science, Foreign Language, Business and management, Computers, Government, Sociology, and Criminal JusticeFitness CenterA Reel Time Movie Theatre that shows second-run moviesHodja Lakes Golf CourseAn Outdoor Recreation Center that provides rental services of bikes, camping equipment, barbecue gear, etc. and coordinates trips to local areasA Veterinary ClinicIn popular culture[edit]Incirlik Air Base is featured in the 2008 Ridley Scottespionage film, Body of Lies, where it is the site of a staged terrorist bombing.Incirlik Air Base is mentioned in the 1997 film, Air Force One. It is the intended landing site for Air Force One after the aircraft is retaken from the hijackers. The aircraft is instead intercepted by Russian MiG's and crashes in the Caspian Sea.Incirlik Air Base is featured in the 2003 video game Command and Conquer: Generals, where it is destroyed by terrorists.Visiting notables[edit]The cast of the film Ocean's ElevenGeorge Clooney, Matt Damon, Andy Garca, Brad Pitt, and Julia Roberts along with director Steven Soderbergh, toured Incirlik on 7 December 2001, immediately following their movie's premiere in Los Angeles, to show American servicemen their appreciation for serving their country.Just weeks after losing Super Bowl XXXIII, Atlanta Falcons star Jamal Anderson toured the base to thank service members.In 2007, Chuck Norris visited Incirlik on his way back to the United States after visiting Iraq.On 26 June 2006, Arizona Cardinals wide receiver Larry Fitzgerald visited the Incirlik Air Base to support American airmen and their families there.On 6 December 2011, comedian Gabriel Iglesias and rock band Daughtry visited Incirlik Air Base to show support for American airmen and their families.See also[edit]References[edit]External links[edit]
Most psychiatric drugs can cause withdrawal reactions, sometimes including life-threatening emotional and physical withdrawal problems. In short, it is not only dangerous to start taking psychiatric drugs, it can also be dangerous to stop them. Withdrawal from psychiatric drugs should be done carefully under experienced clinical supervision. Methods for safely withdrawing from psychiatric drugs are discussed in Dr. Breggin's new book, Psychiatric Drug Withdrawal: A Guide for Prescribers, Therapists, Patients, and Their Families.
A prominent European rabbi has called on governments to relax gun-licensing legislation to allow Jews to carry firearms for self-defense, following last week's deadly Paris attacks and amid rising anti-Semitism on the continent.
Rabbi Menachem Margolin wrote to the governments of all EU-member states urging a change in the law to allow special gun permits for Jews at risk.
In the letter Rabbi Margolin, who is director general of the Rabbinical Centre of Europe (RCE) and the European Jewish Association (EJA), wrote:
"We hereby ask that gun licensing laws are reviewed with immediate effect to allow designated people in the Jewish communities and institutions to own weapons for the essential protection of their communities, as well as receiving the necessary training to protect their members from potential terror attacks."
In a statement to Newsweek, which obtained a copy of the letter, Rabbi Margolin added that he believes that "as many people within the Jewish community as possible" should carry weapons.
His call, he says, is a result of the clear failure of European governments to protect their Jewish communities. The letter was sent less than a week after four shoppers were gunned down by ISIS terrorist Amedy Coulibaly at a kosher supermarket on Friday, in what was just the latest in a string of deadly attacks against European Jews by Muslim extremists.
French Jews have been particularly targeted by Islamist violence. In 2012 Al Qaeda-linked terrorist Mohammed Mera murdered three children and a rabbi at a Jewish school in Toulouse; that, along with several other anti-Semitic murders - including that of Ilan Halimi, who was kidnapped and tortured to death by a Muslim gang - has left France's Jews feeling utterly abandoned by their government.
But other European Jewish communities have also been attacked in recent years, for example last year in Belgium, where an ISIS terrorist murdered four people at the Jewish museum in Brussels.
And the problem is wider still, with near-daily incidents of "lower-level" anti-Semitism - ranging from violent assaults to graffiti and arson, to threats online - are being reported throughout the continent. In particular, last summer saw an unprecedented spike in anti-Semitism in Europe, as extremists used the 50-day war between Israel and Gazan terrorists to whip-up Jew-hatred.
Warning of the threat posed by "home-grown" jihadis in Europe, Rabbi Margolin continued: "We need to recognize the warning signs of anti-Semitism, racism, and intolerance that once again threaten Europe and our European ideals.
"Right now Jews do not feel safe... We are threatened on a daily basis," he added. "People are afraid to come to synagogue. People are afraid to go to Jewish schools."
"[The police] are not doing enough, for sure. We just need more. The best solution is having at least two police officers at each Jewish institution, 24 hours a day. Until that happens we need to be able to feel secure in other ways."
France has taken steps following the attacks to secure Jewish institutions, deploying some 5,000 security force personnel to protect Jewish schools from attack. But many French Jews fear it may not be enough to protect them in their day-to-day lives.
Rabbi Margolin cautioned that he was not calling for Jews to arm themselves illegally, but for governments to take steps to allow them to protect themselves within the law so that they can "feel protected."
"It would be completely controlled in the most professional way."
"Even just a gun. I'm not referring to tanks, it's not about heavy weapons. It's just that everyone would have something in their pocket."
This week, people were shocked when the Drudge Report posted a giant picture of Hitler over a headline speculating that the White House will proceed with executive orders to limit access to firearms. The proposed orders are exceedingly tame, but Drudge's reaction is actually a common conservative response to any invocation of gun control.
The NRA, Fox News, Fox News (again), Alex Jones, email chains, Joe ''the Plumber'' Wurzelbacher, Gun Owners of America, etc., all agree that gun control was critical to Hitler's rise to power. Jews for the Preservation of Firearms Ownership (''America's most aggressive defender of firearms ownership'') is built almost exclusively around this notion, popularizing posters of Hitler giving the Nazi salute next to the text: ''All in favor of 'gun control' raise your right hand.''
In his 1994 book, NRA head Wayne LaPierre dwelled on the Hitler meme at length, writing: ''In Germany, Jewish extermination began with the Nazi Weapon Law of 1938, signed by Adolf Hitler.''
And it makes a certain amount of intuitive sense: If you're going to impose a brutal authoritarian regime on your populace, better to disarm them first so they can't fight back.
Unfortunately for LaPierre et al., the notion that Hitler confiscated everyone's guns is mostly bogus. And the ancillary claim that Jews could have stopped the Holocaust with more guns doesn't make any sense at all if you think about it for more than a minute.
University of Chicago law professor Bernard Harcourt explored this myth in depth in a 2004 article published in the Fordham Law Review. As it turns out, the Weimar Republic, the German government that immediately preceded Hitler's, actually had tougher gun laws than the Nazi regime. After its defeat in World War I, and agreeing to the harsh surrender terms laid out in the Treaty of Versailles, the German legislature in 1919 passed a law that effectively banned all private firearm possession, leading the government to confiscate guns already in circulation. In 1928, the Reichstag relaxed the regulation a bit, but put in place a strict registration regime that required citizens to acquire separate permits to own guns, sell them or carry them.
The 1938 law signed by Hitler that LaPierre mentions in his book basically does the opposite of what he says it did. ''The 1938 revisions completely deregulated the acquisition and transfer of rifles and shotguns, as well as ammunition,'' Harcourt wrote. Meanwhile, many more categories of people, including Nazi party members, were exempted from gun ownership regulations altogether, while the legal age of purchase was lowered from 20 to 18, and permit lengths were extended from one year to three years.
The law did prohibit Jews and other persecuted classes from owning guns, but this should not be an indictment of gun control in general. Does the fact that Nazis forced Jews into horrendous ghettos indict urban planning? Should we eliminate all police officers because the Nazis used police officers to oppress and kill the Jews? What about public works '-- Hitler loved public works projects? Of course not. These are merely implements that can be used for good or ill, much as gun advocates like to argue about guns themselves. If guns don't kill people, then neither does gun control cause genocide (genocidal regimes cause genocide).
Besides, Omer Bartov, a historian at Brown University who studies the Third Reich, notes that the Jews probably wouldn't have had much success fighting back. ''Just imagine the Jews of Germany exercising the right to bear arms and fighting the SA, SS and the Wehrmacht. The [Russian] Red Army lost 7 million men fighting the Wehrmacht, despite its tanks and planes and artillery. The Jews with pistols and shotguns would have done better?'' he told Salon.
Proponents of the theory sometimes point to the 1943 Warsaw Ghetto Uprising as evidence that, as Fox News' Judge Andrew Napolitano put it, ''those able to hold onto their arms and their basic right to self-defense were much more successful in resisting the Nazi genocide.'' But as the Tablet's Michael Moynihan points out, Napolitano's history (curiously based on a citation of work by French Holocaust denier Robert Faurisson) is a bit off. In reality, only about 20 Germans were killed, while some 13,000 Jews were massacred. The remaining 50,000 who survived were promptly sent off to concentration camps.
Robert Spitzer, a political scientist who studies gun politics and chairs the political science department at SUNY Cortland, told Mother Jones' Gavin Aronsen that the prohibition on Jewish gun ownership was merely a symptom, not the problem itself. ''[It] wasn't the defining moment that marked the beginning of the end for Jewish people in Germany. It was because they were persecuted, were deprived of all of their rights, and they were a minority group,'' he explained.
Meanwhile, much of the Hitler myth is based on an infamous quote falsely attributed to the Fuhrer, which extols the virtue of gun control:
This year will go down in history! For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future!
The quote has been widely reproduced in blog posts and opinion columns about gun control, but it's ''probably a fraud and was likely never uttered,'' according to Harcourt. ''This quotation, often seen without any date or citation at all, suffers from several credibility problems, the most significant of which is that the date often given [1935] has no correlation with any legislative effort by the Nazis for gun registration, nor would there have been any need for the Nazis to pass such a law, since gun registration laws passed by the Weimar government were already in effect,'' researchers at the useful website GunCite note.
''As for Stalin,'' Bartov continued, ''the very idea of either gun control or the freedom to bear arms would have been absurd to him. His regime used violence on a vast scale, provided arms to thugs of all descriptions, and stripped not guns but any human image from those it declared to be its enemies. And then, when it needed them, as in WWII, it took millions of men out of the Gulags, trained and armed them and sent them to fight Hitler, only to send back the few survivors into the camps if they uttered any criticism of the regime.''
Bartov added that this misreading of history is not only intellectually dishonest, but also dangerous. ''I happen to have been a combat soldier and officer in the Israeli Defense Forces and I know what these assault rifles can do,'' he said in an email.
He continued: ''Their assertion that they need these guns to protect themselves from the government '-- as supposedly the Jews would have done against the Hitler regime '-- means not only that they are innocent of any knowledge and understanding of the past, but also that they are consciously or not imbued with the type of fascist or Bolshevik thinking that they can turn against a democratically elected government, indeed turn their guns on it, just because they don't like its policies, its ideology, or the color, race and origin of its leaders.''
UT-Austin students will hold a "strap in" protest against campus carry on Aug. 24, 2016 by carrying dildos to class in violation of the campus' obscenity policy.
Photo: Campus (DILDO) Carry Facebook GroupUT-Austin students will hold a "strap in" protest against campus...
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University of Texas at El Paso professor David Smith-Soto hung this "gun free zone" sign outside his multimedia journalism classroom after Gov. Greg Abbott signed campus carry into law in June 2015.
Photo: David Smith-Soto BlogUniversity of Texas at El Paso professor David Smith-Soto hung this...
Cocks not glocks: Dildos to replace guns at UT-Austin campus carry protest
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AUSTIN - Hundreds of students at the University of Texas at Austin will protest a new law will allow more guns on campus not with signs or sit-ins, but by "strapping gigantic swinging dildos to our backpacks."
Their mantra? #CocksNotGlocks
Jessica Jin, who set up the "Campus (DILDO) Carry" event on Facebook, invokes the argument that allowing more guns on campus will make students safe is a fallacy. She's urging students to send campus leaders that message by strapping on the plastic phalluses.
"'You're carrying a gun to class? Yeah well I'm carrying a HUGE DILDO,'" Jin says in the group's description. "Just about as effective at protecting us from sociopathic shooters, but much safer for recreational play."
More than 330 people had signed up to participate by Saturday morning. The "strap in" will occur on Aug. 24, 2016, the first day of next year's fall semester.
The event was created the same day one student was killed and another wounded in a shooting at Texas Southern University, and just days after other deadly shootings on campuses in Oregon and Arizona.
Pro-campus carry advocates have said allowing concealed handguns on campus will enable people to defend themselves in the event of a live shooter, while those against it say it makes little difference and could even add to the chaos.
Gov. Greg Abbott signed Senate Bill 11, the campus carry law, in June. Starting in August 2016, the law will allow properly-licensed firearms owners to carry concealed handguns into most buildings on campus. The law also gives a certain amount of latitude to campus presidents, however, to designate so-called "gun-free zones."
At two public forums held in the last month, dozens of UT-Austin students, faculty and staff spoke against the law, urging President Greg Fenves to severely limit campus carry at the flagship. Last week, a professor emeritus in the school's economic department announced he would be giving up teaching over concerns about his personal safety.
Campus carry does not apply to private schools, and doesn't go into effect for community colleges until August 2017.
But the day it does for Longhorns, concealed carry license holders might not be the only one's packing heat on campus. Jin could not be reached for comment Saturday morning, but the San Antonio native and violin performance major encouraged widespread participation in the event.
"ANYBODY can participate in solidarity: alum, non-UT students, people outside of Texas," she wrote on the group's page. "Come one dildo, come all dildos."
The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791, as part of the first ten amendments contained in the Bill of Rights.[1][2][3][4] The Supreme Court of the United States has ruled that the right belongs to individuals,[5][6] while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices.[7]State and local governments are limited to the same extent as the federal government from infringing this right per the incorporation of the Bill of Rights.
The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.[8]
In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited the applicability of the Second Amendment to the federal government.[9] In United States v. Miller (1939), the Supreme Court ruled that the federal government and the states could limit any weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia".[10][11]
In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[11] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual right to possess and carry firearms.[12][13] In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment's impact to a restriction on the federal government, expressly holding that the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent that the Second Amendment applies to the federal government.[14] Despite these decisions, the debate between various organizations regarding gun control and gun rights continues.[15]
TextThere are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[16][17][18][19][20][21][22][23] The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.
One version was passed by the Congress.[24][25][26][27][28]
As passed by the Congress and preserved in the National Archives, with the rest of the original hand-written copy of the Bill of Rights prepared by scribeWilliam Lambert:[29]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As ratified by the States and authenticated by Thomas Jefferson, then-Secretary of State:[30]
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Pre-Constitution backgroundInfluence of the English Bill of Rights of 1689The right to bear arms in English history is believed to have been regarded in English law as an auxiliary to the long-established natural right of self-defense, auxiliary to the natural and legally defensible rights to life.[31] The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.[32] The bill states that it is acting to restore "ancient rights" trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[33] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[34]
The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."[35] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[36] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.
The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:
Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) ... by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) ... thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) ... That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[35]
The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[37][38]
The English Bill of Rights includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[39] There is some difference of opinion as to how revolutionary the events of 1688''89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]."[40] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[41] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a natural right of the subject that was "also declared" in the English Bill of Rights.[42][43]
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[44]
Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[45] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.[46]
Experience in America prior to the U.S. ConstitutionEarly English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[48][49][50][51][52][53][54][55]
enabling the people to organize a militia system.participating in law enforcement;deterring tyrannical government;[56]repelling invasion;suppressing insurrection, allegedly including slave revolts;[57][58][59]facilitating a natural right of self-defense.Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state".[60]
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[61]
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[62] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[62] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.[63]
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:
Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[62]
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessianmercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[64] They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays' Rebellion.[65] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[66][67]Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[68]
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."[69] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[70]
One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".[71] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[72] as Alexander Hamilton explained in 1788:
[I]f circumstances should at any time oblige the government to form an army of any magnitude[, ] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[72][73]
Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[74][75] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 "the Right of the People to...institute new Government") and the Constitution of New Hampshire (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").[76]
There was an ongoing debate beginning in 1789 about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the increasingly violent French Revolution.[77] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[78] or prohibiting citizens from arming themselves.[62] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[79][80]
Drafting and adoption of the ConstitutionJames Madison (left) is known as the "Father of the Constitution" and "Father of the Bill of Rights"[81] while George Mason (right) with Madison is also known as the "Father of the Bill of Rights"[82]Patrick Henry (left) believed that a citizenry trained in arms was the only sure guarantor of liberty[83] while Alexander Hamilton (right) wrote in Federalist No. 29 that "little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed ..."[73]In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[84][85]
interstate arbitration processes to handle quarrels between states;sufficiently trained and armed intrastate security forces to suppress insurrection;a national militia to repel foreign invaders.It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal congress and giving that congress the power to raise a standing army.[86]Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[87]
raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;provide and maintain a navy;make rules for the government and regulation of the land and naval forces;provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[88] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[89][90]Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[91] The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[92] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.
Ratification debatesThe debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[93]
The Second Amendment was relatively uncontroversial at the time of its ratification.[94] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[95] though Whitehill's language was never debated.[96]
There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:
No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.[97][98]In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.[99]A foundation of American political thought during the Revolutionary period was concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved ... Is it possible ... that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"[100] Noah Webster similarly argued:
Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[101][102]George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them ... by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[101][103]
Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.[104]
Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.[105]While both Monroe and Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed ..."[101][106]
By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution:
Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.[101]Conflict and compromise in Congress produce the Bill of RightsJames Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[107]
On July 21, Madison again raised the issue of his bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,[108] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[109] On August 17, that version was read into the Journal:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[110]
In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[111]
By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to "be passed upon distinctly by the States."[112] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[113]
The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated. An extraneous comma added on August 25 was also removed.[114] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words "necessary to":
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.[115]
On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states.
Militia in the decades following ratificationDuring the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[61] Though sometimes compensated, often these positions were unpaid'--held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[61] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[61] On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:
[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[116]
The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."[116] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.[117] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[118] None are mentioned in the legislation.[116]
The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[119] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[61] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[61] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[61] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[120] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[118]
Tench CoxeIn 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[121]
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[122][123]
Tucker/BlackstoneThe earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[124] Tucker wrote:
A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty ... The right of self defence is the ¬rst law of nature: in most governments it has been the study of rulers to con¬ne this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game : a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at ¬rst view to counteract this policy: but the right of bearing arms is con¬ned to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not quali¬ed to kill game. So that not one man in ¬ve hundred can keep a gun in his house without being subject to a penalty.[125]
In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government" and "whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." Blackstone himself also commented on English game laws, Vol. II, p. 412, "that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."[124] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[126]
Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans "never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty."[124]
William RawleTucker's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England's "arbitrary code for the preservation of game," portraying that country as one that "boasts so much of its freedom," yet provides a right to "protestant subjects only" that it "cautiously describ[es] to be that of bearing arms for their defence" and reserves for "[a] very small proportion of the people[.]"[127] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:
No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[128]
Speaking of the Second Amendment generally, Rawle said:[129]
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[129][130]
Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that "this right [to bear arms] ought not...be abused to the disturbance of the public peace" and observed, paraphrasing Coke, that "[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace."[127]
Joseph StoryJoseph Story articulated in his influential Commentaries on the Constitution[131] the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.[132][133]
Story describes a militia as the "natural defence of a free country," both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a "moral check" against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[133]
Lysander SpoonerAbolitionistLysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[134] Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[135] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a "right of resistance" is protected by both the right to trial by jury and the Second Amendment.[136]
The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.[137]
Timothy FarrarIn 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was "in the process of adoption by the State legislatures.":[123][138]
The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to "life, liberty, and property," to "keep and bear arms," to the "writ of habeas corpus" to "trial by jury," and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or or even by the government itself.
Judge Thomas CooleyJudge Thomas Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,[139][140] and he explained in 1880 how the Second Amendment protected the "right of the people":[141]
It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.
In the latter half of the 20th century there was considerable debate over whether the Second Amendment protected an individual right or a collective right.[142] The debate centered on whether the prefatory clause ("A well regulated militia being necessary to the security of a free State") declared the amendment's only purpose or merely announced a purpose to introduce the operative clause ("the right of the People to keep and bear arms shall not be infringed").
Three basic competing models were offered to interpret the Second Amendment:[143]
The first, known as the "states' rights" or "collective right" model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia.
Judicial reluctance to consider seriously whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement perhaps reflects a tendency to view the Second Amendment, with its apparent guarantee of gun ownership, as embarrassing and politically incorrect. Under the twentieth-century "State's rights" view, "the people" have no right to keep or bear arms, but the states have a collective right to have the National Guard.[123]
The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.
Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow "conditioned" in its exercise on participation in an organized militia.[144]
The third, known as the "standard model", held that the Second Amendment recognized the personal right of individuals to keep and bear arms.
However, the weight of serious scholarship supports the historical intent of the Second Amendment to protect individual rights and to deter governmental tyranny. From the Federalist Papers to explanations when the Bill of Rights was introduced, it is clear that the purpose of the Second Amendment was to protect individual rights.[123]
Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.[145] These interpretations held that this was a grammar structure that was common during that era[146] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[147]
Under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example'--one of many reasons for the amendment.[42] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.[148]
The question of a collective right versus an individual right was progressively resolved in favor of the standard model with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). These rulings upheld the standard model when interpreting the Second Amendment. In Heller, the Supreme Court ruled that the Second Amendment protects an individual right.[149] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[150]
Meaning of "well regulated militia"The term "regulated" means "disciplined" or "trained".[151] In Heller, the U.S. Supreme Court stated that "[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."[152]
In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about "organizing", "disciplining", "arming", and "training" of the militia as specified in the enumerated powers:
If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security ... confiding the regulation of the militia to the direction of the national authority ... [but] reserving to the states ... the authority of training the militia ... A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss ... Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.[73]
Justice Scalia, writing for the Court in Heller: "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the 'natural right of self-defence' and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right":
Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.[153]
Justice Stevens in dissent:
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court's emphatic reliance on the claim "that the Second Amendment ... codified a pre-existing right," ante, at 19 [refers to page 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.[154]
Meaning of "the right of the People"Justice Antonin Scalia, writing for the majority in Heller, stated:
Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"'-- those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people".[155]
An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to elsewhere in the Constitution:[156]
The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people" ... While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
There were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to "the right of the militia to keep and bear arms" instead of "the right of the people to keep and bear arms".[157][158]
Meaning of "keep and bear arms"In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:
Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of "keep Arms" in the Second Amendment is to "have weapons." At the time of the founding, as now, to "bear" meant to "carry." In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens "bear arms in defense of themselves and the state" again, in the most analogous linguistic context'--that "bear arms" was not limited to the carrying of arms in a militia. The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." But it unequivocally bore that idiomatic meaning only when followed by the preposition "against,". Every example given by petitioners' amici for the idiomatic meaning of "bear arms" from the founding period either includes the preposition "against" or is not clearly idiomatic. In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died."[155]
In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:
The Amendment's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves".[159]
Supreme Court casesIn the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[160] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore, 18 U.S.1 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside.[161] In the Dred Scott decision, the opinion of the court stated that if African Americans were considered U.S. citizens, "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right...to keep and carry arms wherever they went."[162]
State and federal courts historically have used two models to interpret the Second Amendment: the "individual rights" model, which holds that individuals hold the right to bear arms, and the "collective rights" model, which holds that the right is dependent on militia membership. The "collective rights" model has been rejected by the Supreme Court, in favor of the individual rights model.
The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).
Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[163]
Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.[164]
United States v. CruikshankIn the Reconstruction Era case of United States v. Cruikshank, 92 U.S.542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States."[165]
The Court stated that "[t]he Second Amendment...has no other effect than to restrict the powers of the national government ......"[166] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[167]
Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[168]
Presser v. IllinoisIn Presser v. Illinois, 116 U.S.252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[61][169]
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right "cannot be claimed as a right independent of law." This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[61] However the court said: "A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force."[170]
Miller v. TexasIn Miller v. Texas, 153 U.S.535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:[61] "As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law."[171]
Robertson v. BaldwinIn Robertson v. Baldwin, 165 U.S.275 (1897), the Court stated in dicta that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:
The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[172]
United States v. MillerIn United States v. Miller, 307 U.S.174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:
Jack Miller and Frank Layton "did unlawfully ... transport in interstate commerce from ... Claremore ... Oklahoma to ... Siloam Springs ... Arkansas a certain firearm ... a double barrel ... shotgun having a barrel less than 18 inches in length ... at the time of so transporting said firearm in interstate commerce ... not having registered said firearm as required by Section 1132d of Title 26, United States Code ... and not having in their possession a stamp-affixed written order ... as provided by Section 1132C ..."[173]
In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated "the objection that the Act usurps police power reserved to the States is plainly untenable."[174] As the Court explained:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[175]
Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of "ordinary military equipment."[176] They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the "common defense."[177] Law professor Andrew McClurg states, "The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact."[178]
District of Columbia v. HellerJudgmentAccording to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[179] in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held:[179][180]
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2''53.[179][180](a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2''22.[179][180](b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22''28.[179][180](c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28''30.[179][180](d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30''32.[179][180](e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32''47.[179][180](f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47''54.[179][180]2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller''''s holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54''56.[179][180]3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition'--in the place where the importance of the lawful defense of self, family, and property is most acute'--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56''64.[180]There are similar legal summaries of the Supreme Court's findings in Heller.[181][182][183][184][185][186] For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up Heller's findings and reasoning:
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever "in-depth examination" of the second amendment's meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation" (id. at 592); that "central to" this right is "the inherent right of self-defense"(id. at 628); that "the home" is "where the need for defense of self, family, and property is most acute" (id. at 628); and that, "above all other interests," the second amendment elevates "the right of law abiding, responsible citizens to use arms in defense of hearth and home" (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.[187]
Notes and analysisHeller has been widely described as a landmark decision.[188][189][190][191][192] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:[193]
Like most rights, the right secured by the Second Amendment is not unlimited ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[194]
The Court's statement that the right is limited has been widely discussed by lower courts and the media.[195][196][197][198][199] The majority opinion also said that the amendment's prefatory clause (referencing the "militia") serves to clarify the operative clause (referencing "the people"), but does not limit the scope of the operative clause, because "the 'militia' in colonial America consisted of a subset of 'the people'...."[200]
Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:
The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[201]
This dissent called the majority opinion "strained and unpersuasive" and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens' interpretation of the phrase "to keep and bear arms" was referred to as a "hybrid" definition that Stevens purportedly chose in order to avoid an "incoherent" and "[g]rotesque" idiomatic meeting.[202]
Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that "the amendment protects an 'individual' right'--i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred".[203]
Regarding the term "well regulated", the majority opinion said, "The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."[152] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[204] The majority opinion also stated that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.[205]
The dissenting justices were not persuaded by this argument.[206]
Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.[180] The majority opinion made clear that the recent ruling did not foreclose the Court's prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).[180]
Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.
Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition'--in the place where the importance of the lawful defense of self, family, and property is most acute'--would fail constitutional muster.... Because Heller conceded at oral argument that the District's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home."[180]
McDonald v. ChicagoOn June 28, 2010, the Court in McDonald v. Chicago, 561 U.S. 3025 (2010), held that the Second Amendment was incorporated, saying that "[i]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."[207] This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[14] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.[208]
Justice Thomas noted that the Privileges or Immunities Clause refers to "citizens" whereas the Due Process Clause refers more broadly to any "person", and therefore Thomas reserved the issue of non-citizens for later decision.[209] After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.[209]
In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:
Two years later, in McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that "the Second Amendment protects the right to keep and bear arms for the purpose of self-defense" (id. at ___, 130 S. Ct. at 3026); that "individual self-defense is 'the central component' of the Second Amendment right" (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that "[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day" (id. at ___, 130 S. Ct. at 3036).[187]
United States Courts of Appeals decisions before and after HellerBefore HellerUntil District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that "tested a congressional enactment against [the Second Amendment]."[11]Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right,[210] with "courts increasingly referring to one another's holdings...without engaging in any appreciably substantive legal analysis of the issue".[11]
Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.[11] Subsequently, the Ninth Circuit conflicted with Emerson in Silviera v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.[11]Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.
After HellerSince Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.[211][212] The following are post-Heller cases, divided by Circuit, along with summary notes:
D.C. Circuit
Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25 On March 26, 2010, the D.C. Circuit denied the follow up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures; the prohibition on assault weapons; and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.[213] On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment. The court upheld requirements that gun owners be fingerprinted, photographed and complete a safety training course.[214]First Circuit
United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) '' On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited "the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns" and observed "the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms '-- those whose possession poses a particular danger to the public."[215]Second Circuit
Kachalsky v. County of Westchester, 11-3942 '' On November 28, 2012, the Second Circuit upheld New York's may-issueconcealed carry permit law, ruling that "the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention."[216]Fourth Circuit
United States v. Hall, 551 F.3d 257 (4th Cir. 2009) '' On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[217]United States v. Chester, 628 F.3d 673 (4th Cir. 2010) '' On December 30, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).[218] The court found that the district court erred in perfunctorily relying on Heller's exception for "presumptively lawful" gun regulations made in accordance with "longstanding prohibitions".[219]Fifth Circuit
United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) '' On June 30, 2008, the Fifth Circuit upheld 39 C.F.R.232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[220][221]United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) '' The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits "straw purchases." A "straw purchase" occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[217]United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) '' On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.Sixth Circuit
Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3d 308 (6th Cir. 2014) - On December 18, 2014, the Sixth Circuit ruled that strict scrutiny should be applied to firearms regulations when regulations burden "conduct that falls within the scope of the Second Amendment right, as historically understood."[222] At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision's constitutionality, instead remanding the case to the United States district court that has earlier heard this case.[223] On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion.[224]Seventh Circuit
United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) '' Steven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[225] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10''1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.[225] Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.[226][227] Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,[228] while editorials favoring gun regulations praised the ruling as "a bucket of cold water thrown on the 'gun rights' celebration".[229]Moore v. Madigan (Circuit docket 12-1269)[230] '' On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.[231][232][233] On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5-4.[234] On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms.[235]Ninth Circuit
Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) '' On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[236][237][238][239] The April 20 decision had held that the Second Amendment applies to state and local governments, while upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[240][241] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the United States District Court for the Northern District of California.[242] On November 28, 2011, the Ninth Circuit vacated the panel's May 2 decision and agreed to rehear the case en banc.[243][244] On April 4, 2012, the panel sent the case to mediation.[245] The panel dismissed the case on June 1, 2012, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance's exception for "events", subject to restrictions regarding the display and handling of firearms.[246]See alsoNotes and citations^Constitutional Law. Casenotes. ^Jilson, Cal. American Government: Political Development and Institutional Change. ^Shaman, Jeffrey. "After Heller: What Now for the Second Amendment". Santa Clara Law Review. Retrieved January 30, 2014. ^"US Senate Annotated Constitution". Retrieved January 30, 2014. ^"Case 1:11-cv-10644-DPW Document 31 #124; MEMORANDUM AND ORDER"(PDF). 30 March 2012. Retrieved September 23, 2014. ^"Permanent resident aliens have second amendment rights too | Monachus Lex". monachuslex.com. Retrieved September 23, 2014. ^Epstein, Lee; Walk, Thomas G. (Sep 18, 2012). Constitutional Law for a Changing America: Rights, Liberties and Justice (8 ed.). CQ Press. pp. 395''396. ISBN 978-1-4522-2674-3. ^"Blackstone's Commentaries on the Laws of England - Book the First - Chapter the First: Of the Absolute Rights of Individuals, page 139". Avalon.law.yale.edu. Retrieved August 1, 2013. ^"United States v. Cruikshank - 92 U.S. 542 (1875)". Retrieved September 5, 2013. ^"United States v. Miller, 307 U.S. 174 (1939)". Cornell University Law School. Retrieved September 5, 2013. ^ abcdefCRS Report for Congress District of Columbia v. Heller: The Supreme Court and the Second Amendment April 11, 2008 Congressional Research Service T.J. Halsted, Legislative Attorney, American Law Division. Order Code RL34446 http://assets.opencrs.com/rpts/RL34446_20080411.pdf.^Pollock, Earl (2008). The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy. Greenwood. p. 423. ISBN 978-0-313-36525-6. ^editor, Gregg Lee Carter,. Guns in American society: an encyclopedia of history, politics, culture, and the law (2nd ed.). Santa Barbara, Calif.: ABC-CLIO. ISBN 978-0-313-38670-1. ^ abLiptak, Adam (June 28, 2010). "Justices Extend Firearm Rights in 5-to-4 Ruling". The New York Times. Retrieved December 17, 2012. ^editor, Gregg Lee Carter,. Guns in American society: an encyclopedia of history, politics, culture, and the law (2nd ed.). Santa Barbara, Calif.: ABC-CLIO. p. Introduction. ISBN 978-0-313-38670-1. ^Davies, pp. 209''16.^The second amendment's capitalization and punctuation are not uniformly reported; another version has four commas, after "militia," "state," and "arms." Since documents were at that time copied by hand, variations in punctuation and capitalization are common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratifications returned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Library of Congress (Oct. 29, 1976).^Freedman, Adam (December 16, 2007). "Clause and Effect". The New York Times. ^"Errors in the Constitution". archives.gov. Retrieved September 23, 2014. ^"The Second Amendment Controversy Explained - Theodore L. Johnson - Google Books". Books.google.com. Retrieved July 5, 2013. ^"Writing Instruction for Generation 2.0 - Gloria E. Jacobs - Google Books". Books.google.com. Retrieved July 5, 2013. ^"Constitutional Mythologies: New Perspectives on Controlling the State - Google Books". Books.google.com. Retrieved July 5, 2013. ^"Separation of Powers in Practice - Thomas Campbell - Google Books". Books.google.com. Retrieved July 5, 2013. ^In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment, but another version is found in the copies distributed and then ratified by them.^"The Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition - Second Amendment - Bearing Arms". Gpo.gov. Retrieved July 5, 2013. ^"Second Amendment Foundation Online". Saf.org. 1995-08-09. Retrieved July 5, 2013. ^"U.S. Constitution For Dummies - Michael Arnheim - Google Books". Books.google.com. 2009-04-29. Retrieved July 5, 2013. ^"Reading the Second Amendment: The Freeman: Foundation for Economic Education". Fee.org. Retrieved July 5, 2013. ^"National Archives - Bill of Rights". Retrieved May 28, 2013. ^"A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875". memory.loc.gov. Retrieved September 23, 2014. ^Blackstone's Commentaries Book 1 Ch 1 '' "The fifth and last auxiliary right of the subject ... is that of having arms for their defence".^From the English civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. Malcolm, "The Role of the Militia," pp. 139''51.^Joyce Lee Malcolm, To Keep and Bear Arms.^"They accordingly obtained an assurance from William and Mary, in the...(Bill of Rights), that Protestants would never be disarmed:..This right has long been understood to be the predecessor to our Second Amendment.... It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament." Opinion of the Court in Heller^ ab"1688 c.2 1 Will. and Mar. Sess. 2". Statutelaw.gov.uk. Retrieved August 30, 2010. ^Barnett, Law, p. 172.^"This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..". Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31''53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103''106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle)." From the Opinion of the Court in District of Co¶imbia versus Heller http://www.supremecourt.gov/opinions/07pdf/07-290.pdf^Justice Antonin Scalia, wrote that "the right of the people to keep and bear Arms, shall not be infringed" was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law "like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." District of Columbia v Heller^"Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier." R v. Burke, [1998] EWHC Admin 913; "[T]he Bill of Rights...was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law'. The law is a changing thing. Parliament by statute can repeal the common law...Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law', 'and as allowed by law' means 'and as allowed by law for the time being'[.]" R v. Burke, [1999] EWCA Civ 923.^Thompson, Mark (1938). Constitutional History of England. qtd. in Maer and Gay, p. 4.^Malcolm, To Keep and Bear Arms, p. 51.^ abEly and Bodenhamer, pp. 89''91.^Heyman, pp. 253''9. "Finally, we should note that (contrary to Kates's assertion), Blackstone nowhere suggests that the right to arms derives from "the common law." Instead, this is a right that is secured by "the constitution," and in particular by the Bill of Rights."^"English Bill of Rights, 1689, "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown"". The Avalon Project. Yale Law School. 2008. Retrieved December 26, 2012. ^e.g., King Henry II'sAssize of Arms and the Statute of Winchester of 1285. See "The history of policing in the West, Collective responsibility in early Anglo-Saxon times", Encyclop...dia Britannica online.^Levy, pp. 136''7.^Cornell, Gun Control, p. 2.^Hardy, p. 1237. "Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system."^Malcolm, "That Every Man Be Armed," pp. 452, 466. "The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment."^Levy, p. 136.^Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. "[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense."^Spitzer, pp. 155''9.^Dulaney, p. 2.^Bogus, Carl T. (editor); Bellesiles, Michael A. (contributor) (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New Press, The. pp. 67''69, 239''240. ISBN 1565846990. ^Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306.^Col. Charles J. Dunlap, Jr. (1995). "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment". 62 TENN. L. REV. 643. Retrieved December 18, 2012. The concept postulates that the Second Amendment was intended to provide the means by which the people, as a last resort, could rise in armed revolt against tyrannical authorities. ^Bogus, Carl T.; Professor, Roger Williams University School of Law (Winter 1998). "The Hidden History of the Second Amendment". U.C. Davis Law Review31: 309''408. ^Hartmann, Thom (2013-01-15). "The Second Amendment was Ratified to Preserve Slavery". Truthout.org. Retrieved February 4, 2013. ^"Whitewashing the Second Amendment". 2008. Retrieved January 16, 2013. the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. ^"Pennsylvania Constitution of 1776". The Avalon Project. Yale Law School. 2008. Retrieved December 26, 2012. ^ abcdefghijDeConde, Alexander (2001). Gun Violence in America: The Struggle for Control. Northeastern University Press. ISBN 9781555534868. Retrieved 29 December 2014. ^ abcd"Boston, March 17". N. Y. J., Supplement: 1, Col.3. April 13, 1769. qtd. in Halbrook, A Right to Bear Arms, p. 7.^Charles, "Arms for Their Defence?", p. 4.^Anderson and Horwitz, pp. 91''2.^Vest, Rose. "Shay's Rebellion", Home of Heroes.^Pole and Greene, p. 386.^Vile, p. 30.^Merkel and Uviller, p. 79.^McAffee and Quinlan, p. 781.^Rakove, p. ?[page needed]^William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 "the fifth and last auxiliary right...when the sanctions of society and laws are found insufficient to restrain the violence of oppression".^ abMillis, p. 49. "The founders sought to balance military, as they did political, power, between people, states, and nation[.]"^ abcThe Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia).^Bogus, Carl T. "Do We Place our Faith in Law or Guns?". Retrieved July 29, 2009. ^Henigan, p. ?. "[A] generalized constitutional right of all citizens to engage in armed insurrection against their government...would threaten the rule of law itself."[page needed]^Reynolds, p. ?[page needed]^"Letter from John Adams to Abigail Adams, 22 December 1793". Masshist.org. Retrieved August 30, 2010. ^Cooke, p. 100. "This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders."^US Constitution Article 1 Section 8 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.^"Elliots Debates Vol 3, Virginia Convention, Saturday June 14, 1788". Teachingamericanhistory.org. January 1, 1980. Retrieved August 30, 2010. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.^Mulloy, p. 43.^Smith, pp. 591, 600.^Cress, Lawrence. An Armed Community: The Origins and Meaning of the Right to Bear Arms. p. 31. qtd. in Cottrol, p. 283.^Vile, p. 19.^Schmidt et al., p. 39.^Williams, pp. 41''4.^Story, Joseph. "Commentaries on the Constitution 2:§§ 904--25, 927--30, 946--52, 954--70, 972--76, 988". The Founders Constitution. The University of Chicago Press. Retrieved April 10, 2013. ^The Federalist Papers No. 46 (James Madison) (concerning the influence of state and federal governments).^Webster, Noah. "An Examination of the Leading Principles of the Federal Constitution" (October 10, 1787).^Young, pp. 38''41. "A Citizen of America (Noah Webster) October 10, 1787 Pamphlet: An Examination into the leading principles of the Federal Constitution."^Foner and Garraty, p. 914. "The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended."^Adamson, p. 63.^See Theories of Constitutional Interpretation, maintained by Doug Linder, University of Missouri-Kansas City Law School. Retrieved 2011-12-11. (Author cites Robert Bork: "If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.")^Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 252. ("Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.")^Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 253''254. ("Whitehill deals with guns in three of his fifteen headings. Article 8 begins: 'The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times ...' article 7: 'That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game ...'")^Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 253. ("The items on the [Whitehill's] list were never discussed in the convention, which when on to approve the Constitution.")^"Articles of Confederation". Usconstitution.net. May 19, 2010. Retrieved August 30, 2010. ^"US Library of Congress, repro of original text". Memory.loc.gov. Retrieved August 30, 2010. ^"US Constitution". US Constitution. Retrieved August 30, 2010. ^2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97 (2d ed. 1863)^ abcd"United States of America v. Timothy Joe Emerson '' The Ratification Debates". Law.umkc.edu. Retrieved August 30, 2010. ^Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787''1788, at 56 (Paul L. Ford, ed. 1971) (1888)^3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425 (3d Ed. 1937)^James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)^Speech on the Federal Constitution, Virginia Ratifying Convention, 1788^The Federalist No. 46, at 371 (James Madison) (John. C. Hamilton Ed., 1864)^Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 451.^Journal of the House of Representatives of the United States, Vol. 1: p. 64.^Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 669.^Annals of Congress, House of Representatives, 1st Congress, 1st Session: p. 778.^Journal of the Senate of the United States of America, Vol. 1: pp. 63''64.^Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789) qtd. in Bickford, et al., p. 16 See also letter from James Madison to Alexander White (Aug. 24, 1789) qtd. in Madison, Writings, pp. 418''9.^Journal of the Senate of the United States of America, Vol. 1: p. 71.^Journal of the Senate of the United States of America, Vol. 1: p. 77.^Journal of the House of Representatives of the United States, Vol. 1: p. 305.^ abc1 Stat. 272.^Merkel and Uviller, pp. 293''4.^ abMerkel and Uviller, p. 12.^Szatmary, p. 107.^1 Stat. 351.^"Remarks on the First Part of the Amendments to the Federal Constitution," Federal Gazette, June 18, 1792, at 2, col. 1^Glenn Harlan Reynolds. "A CRITICAL GUIDE TO THE SECOND AMENDMENT". guncite.com. Retrieved September 23, 2014. ^ abcdHalbrook, Stephen P. (1998). Freedmen, the 14th Amendment, and the Right to Bear Arms, 1866-1876. Greenwood Publishing Group. ISBN 9780275963316. Retrieved March 19, 2013. ^ abcTucker, p. 490 andKopel, David B. "The Second Amendment in the Nineteenth Century". Second Amendment Project. ^Blackstone, Sir William; Tucker, St. George; Christian, Edward (1803). Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to Each Volume, Containing Short Tracts Upon Such Subjects as Appeared Necessary to Form a Connected View of the Laws of Virginia, as a Member of the Federal Union. William Young Birch, and Abraham Small, no. 17, South Second-street, Robert Carr, printer. Retrieved July 5, 2013. ^For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.^ abRawle, p. 126.^Rawle, pp. 125''6.^ abRawle, William (1825). A View of the Constitution of the United States of America. H.C. Carey & I. Lea. Retrieved July 5, 2013. In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest. The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. ^"http://www.portagepub.com/dl/causouth/rawle.pdf?"(PDF). portagepub.com. Retrieved September 23, 2014. ^A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and Objects Thereof : Designed for the Use of School Libraries and General Readers : with an Appendix, Containing Important Public Documents, Illustrative of the Constitution. 1833^Story, Joseph (1865). A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and Objects Thereof : Designed for the Use of School Libraries and General Readers : with an Appendix, Containing Important Public Documents, Illustrative of the Constitution. The Lawbook Exchange, Ltd. ISBN 9781886363717. Retrieved July 5, 2013. The next amendment is, 'A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.' One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men. § 451. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights. ^ abStory, Joseph (1833). Commentaries on the U.S. Constitution. Harper & Brothers. pp. §1890. ^Spooner, pp. 17''8.^Renehan, pp. 172''4.^Spooner, p. 17.^Cramer, p. ?[page needed]^Farrar, Timothy (1872). Manual of the Constitution of the United States of America. Little, Brown. Retrieved July 6, 2013. § 34. The people of the United States, in making their Constitution, do not create or confer on themselves any new rights, but they expressly reserve all the rights they then held, except what were delegated for their own benefit; and they particularly and expressly recognize and perpetuate many natural and civil common-law rights, which, of course, are placed beyond the reach of any subordinate government, and even of their own. Among these are the following : 1. The right to be, what they call themselves, 'the people of the United States,' citizens, and component members of the body politic, '-- the nation; and to participate in all the privileges, immunities, and benefits the Constitution was designed to obtain or secure for all the American people, especially the right to be protected and governed according to the provisions of the Constitution. 2. A right to the privileges and immunities of citizens in any of the several States. Among these is the fundamental and elementary right of suffrage. The Representatives to the national and State legislatures must be chosen by the people, the citizens (Section 2). Consequently, the citizens must choose them, and have a right to choose them. Am. 14, § 2. 3. A right to the common-law writ of habeas corpus, to protect the other common-law right, as well as natural and constitutional right, of personal liberty. 4. A right to trial by jury in any criminal case. 5. A right to keep and bear arms. 6. A right to life, liberty, and property, unless deprived by due process of law. 7. A right to just compensation for private property legally taken for public use. 8. A right to participate in all rights retained by, or reserved to, the people. Most of these rights, with many others, belong by the Constitution not only to the citizens, '-- the people of the United States, strictly so called, by reason of the franchise of natural birth or otherwise, '-- but also to all persons who may be allowed to be and remain under the jurisdiction and protection of our government. These are a part only of the rights held by every member of the nation, under and by virtue of the Constitution of the United States, independent of any other earthly power, and which, of course, 'cannot be destroyed or abridged by the laws of any particular State.' Who, then, in the United States is destitute of rights?...The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to 'life, liberty, and property,' to 'keep and bear arms,' to the 'writ of habeas corpus' to 'trial by jury,' and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or or even by the government itself. ^Thomas M. Cooley, The Abnegation of Self-Government, 12 Princeton Review 213''14 (1883): "The right of the people to bear arms in their own defence, and to form and drill military organizations in defence of the State, '... is reserved by the people as a possible and necessary resort for the protection of self-government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty."^Cooley, Thomas McIntyre (1871). A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union. Little, Brown and company. p. 350:note page=381 in Google Books. Retrieved July 7, 2013. Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms.1 A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly demonstrated in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete ; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is " a well-regulated militia ; " but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed ; but how far it may be in the power of the legislature to regulate the right we shall not undertake to say, as happily there neither has been, nor perhaps is likely to be, much occasion for a discussion of that question by the courts. ^Cooley, Thomas McIntyre (1880). The General Principles of Constitutional Law in the United States of America. F.B. Rothman. Retrieved December 11, 2013. ^Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.^"United States v. Emerson"(http). Retrieved August 30, 2010. ^Barnett, Randy E. (2004). Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?. Retrieved March 21, 2013. ^Merkel and Uviller, p. 150. "The linguistically correct reading of this unique construction is as though it said: 'Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best '' if not the only '' way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without.'"^Winterer, pp. 1''21^"Amicus Brief, ACRU, Case No. 03-CV-0213-EGS, Shelly Parker, et al. vs. District of Columbia, p.14"(PDF). Retrieved August 30, 2010. ^Frey and Wellman, p. 194.^Shapiro, p. 148.^Volokh, "Commonplace," p. 793. "The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured."^Merkel, p. 361. "Well-regulated meant well trained, rather than subject to rules and regulations."^ abHeller, Opinion of the Court, Part II-A-2.^"Scalia in Heller". Retrieved March 25, 2013. ^"Stevens' dissent". Retrieved March 25, 2013. ^ ab"District of Columbia v Heller". Supreme.justia.com. Retrieved August 30, 2010. ^Kopel, David B. (1999). The Supreme Court's Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment. Independence Institute. Retrieved March 17, 2013. ^Crooker, Constance. Gun Control and Gun Rights, p. 55 (Greenwood Publishing Group, 2003).^Lund, Nelson. "The Past and Future of the Individual's Right to Arms", Georgia Law Review, Volume 31, p. 26 (1996).^"District of Columbia v Heller". Cornell University Law School. Retrieved August 30, 2010. ^Cornell, Gun Control, p. 6. Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights.^Justice Story "misidentified" it as the "5th Amendment. Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; the fifth article is the Second Amendment.^"FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved July 5, 2013. ^"''United States v. Miller''". Supreme.justia.com. Retrieved August 30, 2010. ^"''District of Columbia v. Heller''". Supreme.justia.com. Retrieved August 30, 2010. ^Cruikshank, at 552.^Cruikshank, at 553.^Cruikshank, at 554.^Doherty, p. 14.^"The Lehr und Wehr Verein". The New York Times. July 20, 1886. p. 5. ^Cramer, Clayton E. (1994). For the defense of themselves and the state: the original intent and judicial interpretation of the right to keep and bear arms. Praeger. ISBN 9780275949136. Retrieved March 11, 2013. ^Miller, at 539.^Robertson, at 281.^Miller, at 175.^Miller, at 177''8.^Miller, at 178.^Fezell, Howard J. "The misconstruction of United States v. Miller". Retrieved January 5, 2009. ^Paul Helmke (March 28, 2008). "One Court's Second Amendment Fantasy". Huffington Post. Retrieved April 29, 2011. ^McClurg, p. 139. "But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case."^ abcdefghij"DISTRICT OF COLUMBIA v. HELLER (No. 07-290)". Legal Information Institute. Cornell University Law School. Retrieved December 26, 2012. ^ abcdefghijklm"Cornell School of Law Summary of the ''Heller'' Decision". Law.cornell.edu. Retrieved September 1, 2012. ^"Witkin Legal Institute Summary of the ''Heller'' Decision". Witkin.com. June 30, 2009. Retrieved December 26, 2012. ^"Nathan Moore Summary of the Heller Decision". Mooredefenselaw.com. June 30, 2008. Retrieved December 26, 2012. ^"Global Legal Information Network Summary of the ''Heller'' Decision". Glin.gov. Retrieved September 1, 2012. ^Veronica Rose, Principal Analyst. "OLR Research Institute's Summary of the Heller Decision". Cga.ct.gov. Retrieved September 1, 2012. ^"Oyez Summary of the ''Heller'' Decision". Oyez.org. Retrieved December 26, 2012. ^""Legal Community Against Violence" Summary of the ''Heller'' Decision"(PDF). Lcav.org. Retrieved September 1, 2012. ^ ab"People v. Aguilar, 2013 IL 112116"(PDF). Illinois Supreme Court. Illinois Supreme Court. September 12, 2013. pp. 5''6. Retrieved September 14, 2014. ^Mauro, Tony (June 27, 2008). "Supreme Court Strikes Down D.C. Gun Ban". Retrieved January 5, 2009. In a historic 5''4 decision... the landmark ruling... ^Biskupic, Joan and Johnson, Kevin (June 27, 2008). "Landmark ruling fires challenges to gun laws". USA Today. Retrieved January 5, 2009. ^Vicini, James (June 26, 2008). "Americans have right to guns under landmark ruling". Reuters. Retrieved January 5, 2009. ^Greenhouse, Linda (June 27, 2008). "Justices, Ruling 5''4, Endorse Personal Right to Own Gun". The New York Times. Retrieved January 5, 2009. The landmark ruling... ^Liptak, Adam (March 16, 2009). "Few Ripples From Supreme Court Ruling on Guns". The New York Times. Retrieved August 13, 2010. The Heller case is a landmark decision that has not changed very much at all... ^Robert A. Sedler (June 30, 2008). "Ruling upholds most gun control laws". The Detroit News. Retrieved August 20, 2009. ^Heller, Opinion of the Court, Part III.^Harris, Andrew. "Illinois Bid for Rehearing of Gun-Carry Appeal Rejected", Bloomberg News (February 22, 2013): "The U.S. Court of Appeals in Denver today ruled the constitutional provision doesn't guarantee a right to carry a concealed firearm'...."^Kirkland, Michael. "Scalia in '08 -- Right to bear arms is 'not unlimited'", UPI (December 16, 2012).^Henigan, Dennis. Lethal Logic: Exploding the Myths That Paralyze American Gun Policy, p. 204 (Potomac Books 2009).^Epstein, Lee and Walk, Thomas. Constitutional Law: Rights, Liberties and Justice, p. 396 (SAGE 2012).^Huebert, Jacob. Libertarianism Today, p. 147 (ABC-CLIO, 2010).^Heller, Opinion of the Court, 128 S.Ct. 2790, 2791^"''Heller'', Justice Stevens dissenting". Supreme.justia.com. Retrieved August 30, 2010. ^Heller, Opinion of the Court, Part II-A-1-b.^"''Heller'', Justice Breyer dissenting". Supreme.justia.com. Retrieved August 30, 2010. ^"''Heller'', Opinion of the Court, Part II-D-1". Supreme.justia.com. Retrieved August 30, 2010. ^District of Columbia v. Heller, 128 S.Ct. 2783 (2008).^Greenhouse, Linda (June 27, 2008). "Justices Rule for Individual Gun Rights - NYTimes.com". The New York Times. Retrieved May 23, 2010. [A] dramatic upheaval in the law, Justice Stevens said in a dissent ^Rose, Veronica (August 20, 2010). "Summary of the Recent McDonald v. Chicago Gun Case". Office of Legal Research - Connecticut General Assembly. Retrieved September 23, 2015. ^Scarola, Matthew (June 28, 2010). "Analysis: state gun regulations and McDonald". SCOTUSblog. Retrieved July 3, 2010. ^ abDuignan, Brian. The U.S. Constitution and Constitutional Law, pp. 31-32 (Rosen Publishing Group, 2013).^Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Toner, 728 F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273 (3rd Cir. 1997); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)^Winkler, "Heller's Catch 22," p. 14.^Liptak, Adam (March 17, 2009). "Few Ripples From Supreme Court Ruling on Guns". New York Times. Retrieved March 26, 2009. ^"HELLER v. DISTRICT OF COLUMBIA 2010". Leagle. March 26, 2010. Retrieved February 22, 2013. ^"Some D.C. Gun Laws Unconstitutional". U.S. News & World Report. September 18, 2015. Retrieved September 19, 2015. ^Rene E., at 12''15.^N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit '' New York Law Journal^ abWinkler, "Heller's Catch 22," p. 15.^"United States Court of Appeals, Fourth Circuit". FindLaw. Thomson Reuters. Retrieved December 26, 2012. ^Part III of the decision.^Weisselberg, pp. 99''100.^Text of decision in Dorosan^Tyler v. Hillsdale Co. Sheriff's Dept., 775 F.3d 308, 317-19 (6th Cir. 2014) (internal quotations omitted).^"Federal Circuit Court Holds That Involuntary Mental Commitment Cannot Prevent A Person From Asserting His 'Fundamental Right' Of Gun Ownership". Gielow, Groom, Terpstra & McEvoy. January 21, 2015. Retrieved September 22, 2015. ^Tyler v. Hillsdale County Sheriff's Dep't, 2015 U.S. App. LEXIS 6638 (2015)^ ab"Skoien and the many challenges of Second Amendment jurisprudence". SENTENCING LAW AND POLICY. Retrieved August 13, 2010. ^"U.S. v. SKOIEN No. 08-3770". ^"Laws, Life, and Legal Matters '' Court Cases and Legal Information at Leagle.com '' All Federal and State Appeals Court Cases in One Search". ^"The right to regain the right to own a gun". ^"Dennis A. Henigan: New Court Ruling Throws Cold Water on "Gun Rights" Celebration". Huffington Post. July 16, 2010. ^"Moore v. Madigan (Circuit docket 12-1269)"(PDF). United States Court of Appeals for the Seventh Circuit (suntimes.com). December 11, 2012. Retrieved December 18, 2012. ^Denniston, Lyle (December 11, 2012). "Broader gun right declared". SCOTUSblog. Retrieved December 11, 2012. ^Liptak, Adam (December 18, 2012). "Supreme Court Gun Ruling Doesn't Block Proposed Controls". The New York Times. Retrieved December 18, 2012. ^Kopel, David (December 11). "Moore v. Madigan, key points". The Volokh Conspiracy. Retrieved December 18, 2012. ^Volokh, Eugene (February 22, 2013). "Rehearing En Banc Denied in Case Invalidating Illinois' Ban on Carrying Loaded Guns in Public". The Volokh Conspiracy. Retrieved February 22, 2013. ^Todd D. Steenson, Phillip M. Schreiber and Adam R. Young (5 August 2013). "Illinois Firearm Concealed Carry Act Will Require Employers to Take Action". Holland & Koch. Retrieved November 4, 2013. ^Volokh, Eugene (July 29, 2009). "Ninth Circuit Will Rehear Nordyke v. King En Banc". The Volokh Conspiracy. Retrieved July 30, 2009. ^McCullagh, Declan (August 25, 2009). "High-Profile Gun Rights Case Inches Toward Supreme Court". CBS News. Retrieved August 25, 2009. ^Schwartz, John (July 30, 2009). "Appeals Court Sets Rehearing on Ruling That Eased Gun Restrictions". NYTimes.com. Retrieved August 17, 2009. ^Denniston, Lyle (July 30, 2009). "Second Amendment: Less chance of review?". SCOTUSblog. Retrieved July 31, 2009. ^Nordyke v. King (9th Cir. 2009)^Denniston, Lyle (April 20, 2009). "Second Amendment extended". SCOTUSblog. Retrieved April 20, 2009. ^Denniston, Lyle (May 4, 2011). "Circuit Court bolsters gun rights". SCOTUSblog. Retrieved May 4, 2011. ^"Text of November 28 order granting rehearing"(PDF). Retrieved September 1, 2012. ^Mintz, Howard (November 29, 2011). "9th Circuit agrees to rehear long-running Alameda County gun rights case". Oakland Tribune. Retrieved November 30, 2011. ^Denniston, Lyle (April 4, 2012). "Major gun case shunted aside". SCOTUSblog. Retrieved April 5, 2012. ^Denniston, Lyle (June 2, 2012). "Nordyke gun case nears end". SCOTUSblog. Retrieved June 3, 2012. ReferencesBooksAdams, Les (1996). The Second Amendment Primer: A Citizen's Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms. Birmingham, Alabama: Paladium Press. Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court. Pelican Publishing. ISBN 1-58980-520-8. Anderson, Casey; Horwitz, Joshua (2009). Guns, Democracy, and the Insurrectionist Idea. Ann Arbor, MI: University of Michigan Press. ISBN 0-472-03370-0. Barnett, Hilaire (2004). Constitutional & Administrative Law. Routledge Cavendish. ISBN 1-85941-927-5. Bickford, Charlene; et al., eds. (2004). Documentary History of the First Federal Congress of the United States of America, March 4, 1789 '' March 3, 1791: Correspondence: First Session, September''November 178917. The Johns Hopkins University Press. ISBN 978-0-8018-7162-7. Bogus, Carl T. (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press. ISBN 1-56584-699-0. Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558''1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166. Carter, Gregg Lee (2002). Guns in American Society. ABC-CLIO. Charles, Patrick J. (2009). The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. McFarland. ISBN 978-0-7864-4270-6. Cooke, Edward Francis (2002). A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield Publishers. ISBN 0-7425-2238-5. Cornell, Saul (2006). A Well-Regulated Militia '-- The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN 978-0-19-514786-5. Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis. Cramer, Clayton E.; Olson, Joseph (2008). "What Did "Bear Arms" Mean in the Second Amendment?". Geo. J.L. & Pub. Pol'y6 (2). Crooker, Constance Emerson (2003). Gun Control and Gun Rights. Greenwood Publishing Group. ISBN 978-0-313-32174-0. Denson, John V. (1999). The Costs of War: America's Pyrrhic Victories (2 ed.). Transaction Publishers. ISBN 978-0-7658-0487-7. Doherty, Brian (2008). Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. Washington, D.C.: Cato Institute. ISBN 1-933995-25-4. Dulaney, W. Marvin (1996). Black Police in America. Bloomington: Indiana University Press. ISBN 0-253-21040-2. Ely, James W.; Bodenhamer, David J. (2008). The Bill of Rights in Modern America. Bloomington: Indiana University Press. ISBN 0-253-21991-4. Foner, Eric; Garraty, John Arthur (1991). The Reader's Companion to American History. Houghton Mifflin Harcourt. ISBN 0-395-51372-3. Frey, Raymond; Wellman, Christopher (2003). A Companion to Applied Ethics. Cambridge, MA: Blackwell Publishing. ISBN 1-55786-594-9. Halbrook, Stephen P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Publishing Group. Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. ISBN 0-945999-38-0. Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN 978-0-472-03162-7. Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN 0-87436-695-X. Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN 0-300-07802-1. Madison, James (2010). The Writings of James Madison: 1787''1790. Nabu Press. ISBN 978-1-144-58273-7. Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN 0-674-89307-7. Merkel, William G.; Uviller, H. Richard (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN 0-8223-3017-2. Retrieved February 14, 2013. Millis, Walter (1981). Arms and Men. Rutgers University Press. Mulloy, D. (2004). American Extremism. Routledge. Pepper, John; Petrie, Carol; Wellford, Charles F. (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN 0-309-09124-1. Pole, J. R.; Greene, Jack P. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN 1-4051-1674-9. Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN 1-57003-181-9. Schmidt, Steffen; Bardes, Barbara A.; Shelley, Mack C. (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN 0-495-57170-9. Shapiro, Ilya (2008). Cato Supreme Court Review 2007''2008. Washington, D.C: Cato Institute. ISBN 1-933995-17-3. Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN 978-1-59928-913-7. Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN 1-57607-347-5. Szatmary, David P. (1980). Shays' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN 0-87023-295-9. Tucker, St. George; Blackstone, William (1996). Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: In Five Volumes. The Lawbook Exchange, Ltd. ISBN 978-1-886363-15-1. Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can't End the Battle Over Guns. Oxford University Press. pp. xv. ISBN 978-0-19-530424-4. Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press. Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin. Spooner, Lysander (1852). An Essay on the Trial by Jury. Retrieved July 6, 2013. Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN 1-85109-669-8. Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN 0-300-09562-7. Wills, Garry (2000). Saul, Cornell, ed. Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin's. ISBN 0-312-24060-0. Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256''7. ISBN 0-684-87026-6. Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780''1910. Baltimore: Johns Hopkins University Press. Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787''1792 (2 ed.). Golden Oak Books. ISBN 0-9623664-3-9. PeriodicalsBarnett, Gary E. (June 24, 2008). "The Reasonable Regulation of the Right to Keep and Bear Arms". Geo. J.L. & Pub. Pol'y6 (2). Bogus, Carl (1998). "The Hidden History of the Second Amendment". U.C. Davis L. Rev.31. Blodgett-Ford, Sayoko (Fall 1995). "The Changing Meaning of the Right to Bear Arms". Seton Hall Const. L.J.101. Breen, T. H. (1972). "English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts". Past & Present57 (1): 74. doi:10.1093/past/57.1.74. Sunstein, Cass (November 2008). "Comment: Second Amendment Minimalism: Heller as Griswold". Harv. L. Rev.122. Retrieved February 20, 2009. Charles, Patrick J. (2009). "'Arms for Their Defence?': An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment should Be Incorporated in McDonald v. City of Chicago". Clev. St. L. Rev.57 (3). Cramer, Clayton (Winter 1995). "The Racist Roots of Gun Control". Kan. J. Of Pub. Pol'y. Archived from the original on December 4, 2007. Davies, Ross (Winter 2008). "Which is the Constitution"(PDF). Green Bag 2d11 (2): 209''16. Gunn, Steven H. (1998). "A Lawyer's Guide to the Second Amendment". BYU L. Rev.35. Hardy, David (2007). "Book Review: A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America". Wm. & Mary Bill of Rts. J.15. Henigan, Denis (1991). "Arms, Anarchy, and the Second Amendment". Val. L. Rev.26 (107). [dead link]Heyman, Stephen (2000). "Natural Rights and the Second Amendment". Chi.-Kent. L. Rev.76 (237). Kates, Jr., Don B. (November 1983). "Handgun Prohibition and the Original Meaning of the Second Amendment". Mich. L. Rev. (Michigan Law Review, Vol. 82, No. 2) 82 (2): 204''273. doi:10.2307/1288537. JSTOR 1288537. Konig, David Thomas (2004). "The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms"". Law and History Review22 (1). Lund, Nelson. "Heller and Second Amendment Precedent". Lewis & Clark L. Rev. Malcolm, Joyce Lee (1986). "Book Review: That Every Man Be Armed" 54. Malcolm, Joyce Lee (1993). "The Role of the Militia in the Development of the Englishman's Right to be Armed '-- Clarifying the Legacy". J. On Firearms & Pub. Pol'y5. McAffee, Thomas B.; Quinlan, Michael J. (March 1997). "Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?". N.C. L. Rev. McClurg, Andrew (1999). "Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate". J. Of Firearms & Pub. Pol'y11. Merkel, William (Summer 2009). "Heller and Scalia's Originalism"(PDF). Lewis & Clark L. Rev.13 (2). Pierce, Darell R. (1982). "Second Amendment Survey". N. Ky. L. Rev.10 (1). Rakove, Jack (2000). "The Second Amendment: The Highest Stage of Originalism". Chi.-Kent. L. Rev.76. Reynolds, Glenn (1995). "A Critical Guide to the Second Amendment". Tenn. L. Rev.62 (461). Schmidt, Christopher (February 2007). "An International Human Right to Keep and Bear Arms". Wm. & Mary Bill of Rts. J.15 (3): 983. Smith, Douglas (2008). "The Second Amendment and the Supreme Court". Geo. J.L. & Pub. Pol'y6. Volokh, Eugene (1998). "The Commonplace Second Amendment". NYU L. Rev.73 (793). Volokh, Eugene (November''December 1998). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998". Cal. Pol. Rev. Weisselberg, Charles D. (2009). "Selected Criminal Law Cases in the Supreme Court's 2007''2008 Term, and a Look Ahead"(PDF). Court Review44. Wills, Garry (1995). "To Keep and Bear Arms". N.Y. Rev. Of Books42 (14). ISSN 0028-7504. Winkler, Adam (February 2007). "Scrutinizing the Second Amendment". Mich. L. Rev.105. Winkler, Adam (June 2009). "Heller's Catch 22". UCLA L. Rev.56. SSRN 1359225. Other publicationsFurther readingExternal links
Gun Ownership is part of the American experiment. Call the whole thing off or not, no piecemeal stuff
(ANTIMEDIA)Middle East '--If you've ever stumbled across genuine Islamic State propaganda videos or photos and their loose resemblance to car commercials '-- albeit with a notably dystopic terror-cult tinge '-- you probably quizzically crinkled your brow. But after time spent perusing more oddly indistinguishable ISIS propaganda than you'd care to remember, that crinkled brow surely crystallized into veritable folklore:
WheredidISIS get all those new Toyota trucks?!
Now, at long last, U.S. counterterrorism officials have commenced an ostensibly earnest attempt to answer thatopen question'-- by asking Toyota how, exactly, ISIS came to possess such an impressive array of its late-model pick-ups and SUVs.
In response, Toyota claims to have no idea how it happened '-- partly because tracking vehicle sales won't necessarily catch middlemen or wholesalers with terrorist ties.
And after all, the company maintains a''strict policy to not sell vehicles to potential purchasers who may use or modify them for paramilitary or terrorist activities,''accordingto Ed Lewis, Toyota's director of public policy and communications in Washington, as reported by ABC News.''We briefed Treasury on Toyota's supply chains in the Middle East and the procedures Toyota has in place to protect supply chain integrity.''
Lewis' reference to''Treasury''is Toyota's pledge to''support''an inquiry by the U.S. Treasury Department's rather problematically-monikeredTerror Financing Unit'-- which is one ostensible arm of a purposefully nonspecific''effort''to somehow prevent ISIS from acquiring Western stuff.
''This is a question we've been asking our neighbors,''beseeched Iraqi Ambassador to the U.S., Lukman Faily.''How could these brand new trucks . . . these four-wheel drives, hundreds of them '-- where are they coming from?''
Toyota's Land Cruisers and its overseas version of the Tacoma '-- the dubious Hilux '-- have become a notoriously iconic feature of ISIS.
''Regrettably, the Toyota Land Cruiser and Hilux have effectively become almost part of the ISIS brand,''explained Mark Wallace, CEO of the nonprofit Counter Extremism Project, which tracks and exposes financial networks that back terrorism, to ABC News.''ISIS has used these vehicles in order to engage in military-type activities, terror activities, and the like. But in nearly every ISIS video, they show a fleet '-- a convoy of Toyota vehicles and that's very concerning to us.''
ISIS inevitably procures a bevy of U.S. military accoutrements abandoned by or otherwise wrested from Iraqi fighters, who purportedly ditched some2,300 Humveesin retreat near Mosul '-- ghanimah, or spoils '-- a veritable boon for ISIS militants. But, as you're likely well aware, ISIS' spoils include decidedly more dangerous items than Toyotas and Humvees.
According to examples cited by Reuters, besides the Humvees, ISIS' spoils include:
Innumerable small arms and ammunition52 Howitzer M198 mobile gun systems40 main M1A1 battle tanksAnd Iraqi butterfingers naturally translated into additional search and destroy missions for U.S. military to essentially track down its own weapons. As Peter Van Burenmused,
''It's a surreal state of affairs in which American weaponry is being sent into Iraq to destroy American weaponry previously sent into Iraq.If a new sequel to Catch-22 were to be written, this would be the plot line.''
To destroy ISIS' tanks, originally sent to aid Iraqi forces, the U.S. '-- logically enough '-- proceeded to ship Iraqi forces 175 Abrams tanks; 55,000 rounds of tank ammo; $600 million in howitzers and trucks; 2,000 AT-4 rockets; and $700 million in Hellfire missiles.
Throwing money at 'it' seems to be the Department of Defense's stopgap, default answer to every issue '-- hence the veritable braintrust so apparent in this plan.
Brush away that trepidation, though. Should this entire shipment fall to the Islamic State, Congress already approved an additional $1.2 billion earlier this year '-- specifically to help bolster Iraqi forces.
This article (How the US Became a Toyota Dealer for ISIS) is free and open source. You have permission to republish this article under aCreative Commonslicense with attribution toClaire BernishandtheAntiMedia.org.Anti-Media Radioairs weeknights at 11pm Eastern/8pm Pacific. If you spot a typo, emailedits@theantimedia.org.
Author:S.m. Gibson
SM Gibson joined Anti-Media in December of 2012. He currently resides in Birmingham, Alabama, where he was born and raised.
Iraq IS: Military claims al-Baghdadi convoy hit - BBC News
Image copyrightAPImage caption Abu Bakr al-Baghdadi was filmed in Mosul last year Iraq's air force has hit a convoy of Islamic State leader Abu Bakr al-Baghdadi, a military statement says.
The fate of the IS leader was unknown, it said. The strike has not been independently confirmed.
The attack is said to have happened in western Anbar province, near the Syrian border.
There have previously been reports that the IS leader has been killed or seriously injured in attacks, but none was subsequently confirmed.
The Iraqi air force "bombed the convoy of the terrorist Abu Bakr al-Baghdadi while he was heading to Karabla to attend a meeting" with Daesh (IS) commanders", Sunday's statement said.
"The location of the meeting was also bombed and many of the group's leaders were killed and wounded," it added.
Rumours about Baghdadi's death surfaced earlier this year, after reports that he had been seriously wounded in an air strike in March by the US-led coalition that is opposing IS.
Reports that he was injured in 2014 were inaccurate.
Baghdadi has been careful to reveal little about himself and his whereabouts, and even his own fighters reportedly do not speak about seeing him face-to-face.
In October 2011, the US officially designated Baghdadi as a "terrorist" and offered a $10m (£5.8m; 7.3m euros) reward for information leading to his capture or death.
WASHINGTON, Oct 10 (Reuters) - The U.S. Department of Defense will seek to make "condolence payments" to families of victims of a U.S. air strike that mistakenly hit a Medecins Sans Frontieres hospital in Kunduz, Afghanistan, killing 22 people, the Pentagon said on Saturday.
"The Department of Defense believes it is important to address the consequences of the tragic incident at the Doctors Without Borders hospital in Kunduz, Afghanistan," spokesman Peter Cook said in a statement, adding the United States would also pay to repair the charity hospital.
"U.S. Forces-Afghanistan has the authority to make condolence payments and payments toward repair of the hospital. USFOR-A will work with those affected to determine appropriate payments. If necessary and appropriate, the administration will seek additional authority from the Congress," he said.
President Barack Obama on Wednesday apologized to Medecins Sans Frontieres (MSF) for the bombing of its hospital.
The medical charity is pressing for an international commission to investigate what it calls a war crime. Among those killed were 12 MSF staff.
On Tuesday, Defense Secretary Ash Carter said the U.S. military deeply regretted the loss of life and was acknowledging its mistake and working to understand what went wrong.
"The U.S. military takes the greatest care in our operations to prevent the loss of innocent life, and when we make mistakes, we own up to them. That's exactly what we're doing right now," Carter said in a statement.
(Reporting by Sandra Maler Editing by W Simon and David Gregorio)
While U.S. pilots carried out airstrikes that killed 22, video and audio recorders were capturing the tragedy from inside the cockpit.
U.S. military investigators are focusing on classified video and audio recordings taken from the gunship that carried out a lethal attack on a hospital in Afghanistan, The Daily Beast has learned.
A U.S. defense official told The Daily Beast the recordings were key to the Pentagon's emerging understanding of the assault in Kunduz that killed 22 people, including patients and medical personnel from Doctors Without Borders.
Among the recordings available from the AC-130 gunship involved in the attack are conversations among the gunship crew as they fired on the facility, and as they communicated with U.S. soldiers on the ground.
Among the recordings taken from the AC-130 gunship involved in the attack are conversations among the gunship crew as they fired on the facility, and as they communicated with U.S. soldiers on the ground.
Earlier this week, Pentagon officials saw and heard the recordings, the official told The Daily Beast; the audio recordings were particularly illuminating. The recordings helped lead the U.S. military to conclude that the so-called rules of engagement'--the guidelines for the use of force'--were misapplied. Because of the ongoing investigation, the defense official'--and the Pentagon's spokespeople'--refused to comment on the details of what the recordings captured.
Questions about the recordings of the attack came up this week in classified briefings on Capitol Hill, but the military did not make either the audio or video available to congressmen and senators who oversee the Pentagon. And even when a lawmaker directly requested to listen to the audio, a senior congressional aide told The Daily Beast, they were rebuffed by the Department of Defense, which cited its continuing investigation as a reason not to share it.
The hospital attack has been the subject of intense controversy'--and shifting explanations'--since it was launched on Oct. 3. In the initial hours after the attack, a U.S. military spokesman in Afghanistan called the hospital ''collateral damage'' in a battle against the Taliban. Three days later, Army Gen. John Campbell, who is in charge of the mission of Afghanistan, told the Senate Armed Services Committee the U.S. ''mistakenly struck'' the hospital. In between, officials began reviewing the recordings of the strike, which Doctors Without Borders representatives have called evidence of a ''war crime.''
President Obama, in an unusual move, personally called Doctors with Borders to apologize on behalf of the United States.
The Pentagon believes the attack on the hospital began because the U.S. thought Afghan troops were under attack from Taliban fighters. The U.S. military and would never ''intentionally'' strike a hospital, Campbell told Congress this week.
The U.S. military said Afghan forces were taking fire from near the hospital, leading the Afghans to ask for American air support. The U.S. on-the-ground troops required in such strikes were as far as half a mile away, the defense official told The Daily Beast, which likely helped create confusion about what the U.S. military was striking.
Afghan troops, however, appear to have been deeply familiar with the location. If so, that raises the question: Why would they call in such an attack?
Campbell implied during his Senate testimony Tuesday that the American rules of engagement were at least part of the problem.
''To prevent any future incidents of this nature, I have directed the entire force to undergo in-depth training in order to review all of our operational authorities and rules of engagement,'' he told the committee.
The U.S. military, NATO, and the Afghan government are all conducting concurrent investigations. During his testimony before the House Armed Services Committee on Thursday, Campbell said he hoped to have the preliminary results of the U.S. military investigation completed within 30 days.
Army Brig. Gen. Richard Kim is leading the U.S. investigation but only reached the hospital site in the last 48 hours, a second defense official explained, because of instability in the northern Afghan city. Kim hopes to interview patients there, but many have fled to other parts of Afghanistan for medical care, the official said.
AC-130 gunships fly low to the ground to allow crews to make strike assessments based on what they see. The AC-130 unit involved in the Kunduz attack was linked to a Special Operations Force, a U.S. official told The Daily Beast. Special Operations Forces were operating nearby, at the airport, training the Afghan forces that came under attack.
The U.S. uses airpower in Afghanistan in one of three, broadly-defined missions: to defend U.S. troops in harm's way; to protect key Afghan assets or positions under enemy fire; or to conduct operations as part of the U.S. counterterrorism campaign against the Taliban.
And it is that third reason that can allow for myriad, legally justified attacks, such as the Taliban attacking U.S.-trained Afghan forces in a hotly contested city. The rules of engagement arguably can become as permissive as they are restrictive.
''They can stretch the reading of that'' third point, one defense official explained to The Daily Beast. ''It can be liberally interpreted.''
But any request must travel through the chain of command and receive U.S. military approval. A pre-flight brief also should have noted areas that should not be struck, including religious sites, schools'--and hospitals.
Doctors Without Borders said it notified the U.S. military of its hospital's coordinates as recently as Sept. 29, shortly after the Taliban moved into Kunduz for the first time since 2001.
The Taliban has since lost control of much of the city and moved on to other provinces. But stability in Kunduz remains tenuous.
'--with additional reporting by Tim Mak
Doctors Without Borders airstrike: US alters story for fourth time in four days | World news | The Guardian
General John Campbell says the airstrike was the result of a 'US decision'.
US special operations forces '' not their Afghan allies '' called in the deadly airstrike on the Doctors Without Borders hospital in Kunduz, the US commander has conceded.
Shortly before General John Campbell, the commander of the US and Nato war in Afghanistan, testified to a Senate panel, the president of Doctors Without Borders '' also known as M(C)decins sans Fronti¨res (MSF) '' said the US and Afghanistan had made an ''admission of a war crime''.
Shifting the US account of the Saturday morning airstrike for the fourth time in as many days, Campbell reiterated that Afghan forces had requested US air cover after being engaged in a ''tenacious fight'' to retake the northern city of Kunduz from the Taliban. But, modifying the account he gave at a press conference on Monday, Campbell said those Afghan forces had not directly communicated with the US pilots of an AC-130 gunship overhead.
''Even though the Afghans request that support, it still has to go through a rigorous US procedure to enable fires to go on the ground. We had a special operations unit that was in close vicinity that was talking to the aircraft that delivered those fires,'' Campbell told the Senate armed services committee on Tuesday morning.
Related:MSF hospital airstrike: who are the victims?
The airstrike on the hospital is among the worst and most visible cases of civilian deaths caused by US forces during the 14-year Afghanistan war that Barack Obama has declared all but over. It killed 12 MSF staff and 10 patients, who had sought medical treatment after the Taliban overran Kunduz last weekend. Three children died in the airstrike that came in multiple waves and burned patients alive in their beds.
On Tuesday, MSF denounced Campbell's press conference as an attempt to shift blame to the Afghans.
''The US military remains responsible for the targets it hits, even though it is part of a coalition,'' said its director general, Christopher Stokes.
Campbell did not explain whether the procedures to launch the airstrike took into account the GPS coordinates of the MSF field hospital, which its president, Joanne Liu, said were ''regularly shared'' with US, coalition and Afghan military officers and civilian officials, ''as recently as Tuesday 29 September''.
AC-130 gunships, which fly low, typically rely on a pilot visually identifying a target.
It is also unclear where the US special operations forces were relative to the fighting, but Campbell has said that US units were ''not directly engaged in the fighting''.
Campbell instead said the hospital was ''mistakenly struck'' by US forces.
''We would never intentionally target a protected medical facility,'' Campbell told US lawmakers, declaring that he wanted an investigation by his command to ''take its course'' instead of providing further detail.
But Jason Cone, Doctors Without Borders' US executive director, said Campbell's shifting story underscored the need for an independent inquiry.
''Today's statement from General Campbell is just the latest in a long list of confusing accounts from the US military about what happened in Kunduz on Saturday,'' Cone said.
Related:International criminal court must investigate bombing of Afghan hospital | Letters
''They are now back to talking about a 'mistake'. A mistake that lasted for more than an hour, despite the fact that the location of the hospital was well known to them and that they were informed during the airstrike that it was a hospital being hit. All this confusion just underlines once again the crucial need for an independent investigation into how a major hospital, full of patients and MSF staff, could be repeatedly bombed.''
Campbell suggested but did not say that the Afghans were taking fire from the Taliban from within the hospital grounds, a claim the Afghan government has explicitly made. MSF unequivocally denies that the hospital was a source of fire. It has also noted the precision of the strike that hit only the main hospital building and not its adjuncts.
Mary Ellen O'Connell, a professor of international law at the University of Notre Dame, said that according to international humanitarian law, the critical question for determining if US forces committed a war crime was whether they had notified the hospital ahead of the strike if they understood the Taliban to be firing from the hospital.
''Any serious violation of the law of armed conflict, such as attacking a hospital that is immune from intentional attack, is a war crime. Hospitals are immune from attack during an armed conflict unless being used by one party to harm the other and then only after a warning that it will be attacked,'' O'Connell said.
Timeline of US account of MSF airstrikesThe US account has now shifted four times in four days. On Saturday, the US military said it did not know for certain that it had struck the hospital but that US forces were taking fire in Kunduz.
On Sunday, it said that the strike took place in the ''vicinity'' of the hospital and suggested it had been accidentally struck. On Monday, Campbell said that the Afghans requested the strike and said US forces in the area were not ''threatened''.
On Tuesday, he clarified that US forces called in the airstrike themselves at Afghan request.
Meanwhile, the defense secretary, Ashton Carter, said in a statement on Tuesday, that the Department of Defense ''deeply regrets the loss of innocent lives that resulted from this tragic event''.
Doctors Without Borders has demanded an independent inquiry, rejecting the three current investigations '' by the US, Nato and the Afghans '' as compromised by their partiality.
''This attack cannot be brushed aside as a mere mistake or an inevitable consequence of war. Statements from the Afghanistan government have claimed that Taliban forces were using the hospital to fire on coalition forces. These statements imply that Afghan and US forces working together decided to raze to the ground a fully functioning hospital, which amounts to an admission of a war crime,'' Liu said on Tuesday.
In the past, the US has upbraided both allies and adversaries over the indiscriminate use of aerial strikes.
On Thursday, the US defense secretary said Russia was pouring ''gasoline on the fire'' of the Syrian civil war after it launched a campaign of airstrikes against opponents of Moscow's ally Bashar al-Assad.
A day later, the National Security Council spokesman, Ned Price, said the White House was ''deeply concerned'' that its Saudi ally in the Yemen conflict had bombed a wedding party, something the US itself did in Yemen in 2013.
When Israel shelled a UN school in Gaza housing thousands of displaced Palestinians in August 2014, a State Department spokesman said the US was ''appalled'' by the ''disgraceful'' attack.
Addressing Tuesday's committee hearing, Campbell confirmed that he has recommended to Obama that the US retain thousands of troops in Afghanistan beyond Obama's presidency '' reversing a plan to reduce the force to one focused on protecting the US embassy in Kabul.
He argued for ''strategic patience'' in the longest war in US history, which has now stretched five years longer than the failed Soviet occupation of Afghanistan.
Why Is the U.S. Refusing An Independent Investigation If Its Hospital Airstrike Was An ''Accident''?
(No Mr. McCain, we do that. But I'm glad to see you agree it's a horrible war-crime if it was done on purpose. finally we agree on something.)
from the Intercept
In Geneva this morning, Doctors Without Borders (MSF) demanded a formal, independent investigation into the U.S. airstrike on its hospital in Kunduz. The group's international president, Dr. Joanne Liu (pictured above, center), specified that the inquiry should be convened pursuant to war-crime-investigating procedures established by the Geneva Conventions and conducted by The International Humanitarian Fact-Finding Commission. ''Even war has rules,'' Liu said. ''This was just not an attack on our hospital. It was an attack on the Geneva Conventions. This cannot be tolerated.''
Liu emphasized that the need for an ''independent, impartial'' investigation is now particularly compelling given what she called ''the inconsistency in the U.S. and Afghan accounts of what happened over the recent days.'' On Monday, wedocumented the multiple conflicting accounts offered in the first three days by the U.S. military and its media allies, but the story continued to change even further after that. As The Guardian's headline yesterday noted, the U.S. admission that its own personnel called in the airstrike '' not Afghan forces as it claimed the day before '' meant that ''US alters story for fourth time in four days.'' All of this led Liu to state the obvious today: ''We cannot rely on internal military investigations by the U.S., NATO and Afghan forces.''
An independent, impartial investigation into what happened here should be something everyone can immediately agree is necessary. But at its daily press briefing on Monday, the U.S. State Department, through its spokesman Mark Toner, insisted that no such independent investigation was needed on the ground that the U.S. Government is already investigating itself and everyone knows how trustworthy and reliable this process is:
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Elf aanhoudingen na bestorming opvangcentrum asielzoekers Woerden | NU - Het laatste nieuws het eerst op NU.nl
De politie heeft vrijdagavond elf mensen aangehouden die een opvangcentrum voor asielzoekers hebben bestormd in Woerden.Dat bevestigt een woordvoerster van de politie zaterdag tegenover NU.nl.
De verdachten zijn tussen 19 en 30 jaar en komen uit Montfoort, Harmelen, Lopik, Schoonhoven, Woerden en Utrecht, zo zegt de politie zaterdag.
Twintig belagers hebben tevergeefs geprobeerd het sportcentrum binnen te komen. Volgens een woordvoerster hebben burgers geholpen met de aanhoudingen. "De bewaking belde het alarmnummer 112 en toegesnelde agenten konden de elf verdachten daarop aanhouden." Ze worden verdacht van openlijke geweldpleging en op dit moment verhoord.
Hoe het kon dat de andere negen belagers wisten te ontkomen, is nog onduidelijk. De politie is nog naar ze op zoek. Op de vraag of de verdachten afkomstig zijn uit de harde kern van FC Utrecht, zoals lokale media hebben gemeld, antwoordde de woordvoerster dat dat "in het onderzoek wordt meegenomen".
GeschrokkenVolgens burgemeester Victor Molkenboer van Woerden zijn de vluchtelingen erg geschrokken van de knallen. "De meesten komen uit een oorlogsgebied, die knallen geven een traumatische ervaring", zegt hij tegen lokale televisie. Molkenboer noemt de groep bestormers "ziek". "Je kunt voor of tegen zijn, maar dit soort acties doe je niet."
De gemeente Woerden heeft extra veiligheidsmaatregelen rondom de sporthal genomen. Zo is er nu permanent politietoezicht en wordt de ingang extra beveiligd met camera's. Zaterdagochtend waren er geen agenten te zien rond het sportcomplex.
Er zijn wel wat particuliere beveiligers en mensen van de dienst handhaving. De ingang van de sportzaal is afgeschermd, niemand mag naar binnen en verder hangen er politielinten. Ook is er een mobiele camera-opstelling geplaatst.
Video: Burgemeester Woerden over de bestorming
EierenVolgens de lokale zender Woerden.tv werd het centrum door twintig mannen met bivakmutsen bestormd. Zij zouden hekken omver hebben geduwd en met vuurwerk en eieren hebben gegooid. De gemaskerde mannen zijn volgens de zender mogelijk gelieerd aan de harde kern van FC Utrecht.
De asielzoekers in Woerden zijn woensdag opgevangen in een sporthal. Het gaat om 150 vluchtelingen overwegend uit Syri en Eritrea. Volgens haar is de tijdelijke noodopvang woensdag ingegaan voor 72 uur en is die vrijdag verlengd met opnieuw 72 uur.
OnacceptabelStaatssecretaris Klaas Dijkhoff (Asielzaken) is geschrokken van het incident bij de noodopvang. "Dit zijn trieste taferelen. Zulk geweld is onaanvaardbaar. Daders moeten hard worden aangepakt. Vluchtelingen en omwonenden moeten veilig zijn", laat hij zaterdag weten.
Premier Mark Rutte noemt de bestorming van de sporthal ontoelaatbaar. De daders moeten hard worden aangepakt, zegt hij zaterdag in een reactie. "Wat in Woerden is gebeurd is volstrekt ontoelaatbaar. Vluchtelingen en medewerkers moeten zich veilig weten. Van mensen blijf je af. Degenen die hiervoor verantwoordelijk zijn moeten hard worden aangepakt", aldus de premier.
PvdA en D66 vinden dat de mensen die de noodopvang hebben bestormd, hard moeten worden aangepakt. Ongeveer twintig man met bivakmutsen op gooiden met vuurwerkbommen en probeerden hekken omver te trekken.
"Schokkend! Gevaarlijke idioten, je kunt voor of tegen zijn maar dit is onacceptabel. Pak daders keihard aan", twitterde Attje Kuiken die voor de PvdA in de Tweede Kamer woordvoerder asielzaken is. De partij heeft inmiddels Kamervragen gesteld over de kwestie.
De politie heeft vrijdagavond elf mensen aangehouden die een opvangcentrum voor asielzoekers hebben bestormd in Woerden. (C) ANP
Twintig belagers hebben tevergeefs geprobeerd het sportcentrum binnen te komen. Volgens een woordvoerster hebben burgers geholpen met de aanhoudingen. (C) ANP
De gemeente Woerden heeft extra veiligheidsmaatregelen rondom de sporthal genomen. Zo is er nu permanent politietoezicht en wordt de ingang extra beveiligd met camera's. (C) ANP
AanpakkenIn soortgelijke woorden liet haar collega Sjoerd Sjoerdsma van D66 zich uit op hetzelfde medium. "Voor mensen die vuurwerk gooien op de noodopvang van asielzoekers bestaat maar (C)(C)n woord: tuig. Stevig aanpakken!".
Volgens VVD'er Malik Azmani is het "ontoelaatbaar" wat er is gebeurd. "De daders moeten zo snel mogelijk worden opgepakt en berecht. Iedereen heeft recht op een mening, maar er is geen rechtvaardiging voor dit gedrag."
GroenLinks-Tweede Kamerlid Linda Voortman noemt het een beschamende actie. "Mensen die juist gevlucht zijn voor oorlog en geweld krijgen hier te maken met vuurwerkbommen. Vluchtelingen hebben recht op een veilig verblijf." De daders moeten worden bestraft, zegt Voortman.
"Aan ons als politici om de spanningen in het land niet verder te laten oplopen maar juist eerlijk te zijn en met goede oplossingen te komen. Ook moeten alle gemeenten gemeenten geven kleinschalige kunnen opvangen. Dat is het beste voor alle betrokkenen."
Ook Geert Wilders van de PVV liet eenzelfde geluid horen via Twitter. "Daders hard aanpakken. Verzet ja, maar nooit met geweld!"
Door: NU.nl
Agenda 2030
In California, Electric Cars Outpace Plugs, and Sparks Fly - NYTimes.com
SAN FRANCISCO '-- Of all the states, California has set the most ambitious targets for cutting emissions in coming decades, and an important pillar of its plan to reach those goals is encouraging the spread of electric vehicles.
But the push to make the state greener is creating an unintended side effect: It is making some people meaner.
The bad moods stem from the challenges drivers face finding recharging spots for their battery-powered cars. Unlike gas stations, charging stations are not yet in great supply, and that has led to sharp-elbowed competition. Electric-vehicle owners are unplugging one another's cars, trading insults, and creating black markets and side deals to trade spots in corporate parking lots. The too-few-outlets problem is a familiar one in crowded cafes and airports, where people want to charge their phones or laptops. But the need can be more acute with cars '-- will their owners have enough juice to make it home? '-- and manners often go out the window.
In the moments after Don Han plugged in his Nissan Leaf at a public charging station near his Silicon Valley office one day this summer, he noticed another Leaf pull up as he was walking away. The driver got out and pulled the charger out of Mr. Han's car and started to plug it into his own. Mr. Han stormed back.
''I said, 'Hey, buddy, what do you think you're doing?' And he said, 'Well, your car is done charging,' '' Mr. Han recalled. He told him that was not the case, put the charger back in his own car and left ''after saying a couple of curse words, of course.''
Such incidents are not uncommon, according to interviews with drivers and electric vehicle advocates, as well as posts from people sharing frustrations on social media. Tensions over getting a spot are ''growing and growing,'' said Maureen Blanc, the director of Charge Across Town, a San Francisco nonprofit that works to spread the adoption of electric vehicles. She owns an electric BMW and recently had a testy run-in over a charging station with a Tesla driver.
''It's high time,'' she said, ''for somebody to tackle the electric-vehicle etiquette problem.''
Some people are working on short-term fixes. A Google computer manager said he had sold 9,000 of the EV Etiquette Survival Packs that he created. For $15.99, a pack includes hang tags for vehicles that urge fellow drivers not to unplug others' cars while charging.
Mr. Brown's EV Etiquette Survival Pack. For $15.99, a pack includes hang tags for vehicles that urge fellow drivers not to unplug others' cars while charging.
Jason Henry for The New York Times
More public chargers are the obvious long-term solution. About half of the 330,000 electric vehicles in this country are registered in California, and Gov. Jerry Brown wants to increase that number to 1.5 million by 2025. He has pledged a sharp increase in charging stations.
Right now, there is roughly one public charger for every 10 electric vehicles '-- about 15,000 in California and 33,000 across the country, according to ChargePoint, one of the biggest charging-station companies. (There are thousands of other, unofficial charging spots that are essentially wall outlets that businesses or homeowners have made available for public plug-in).
The larger public charging stations tend to look like high-tech gas pumps and often are in parking lots. But they can vary widely in cost and charging power. Some take half an hour for a charge and others four hours or more; many are free or subsidized, and others cost $1 an hour or more. Public charging stations and lights on many vehicles indicate when a car battery is full.
Most people charge at home (using an electrical outlet) but also want to use public chargers, in part because the cars have a limited range '-- typically 80 miles. On top of this ''range anxiety,'' as it is called, drivers like the idea of getting a free or low-cost charge at a public station.
''Imagine going to a gas station that says, 'Here's free gas.' Who wouldn't want to muscle in and say, 'I'll take some free gas'?'' said Ollie Danner, the founder of EVPerks, a California company that works with local and national businesses to offer coupons and other incentives to electric vehicle drivers.
The rudeness is not just among drivers of electric cars. By many accounts, owners of gas-powered cars often take up desirable parking and charging spots that companies and cities reserve for electric cars. This habit has inspired the spread of a nickname: ICE Holes. (ICE stands for internal combustion engine.)
''Some people say, 'I just wish I could key their cars,' '' said Jack Brown, who created the EV Etiquette Survival Packs and a Facebook page devoted to complaining about the interlopers.
Mr. Brown, who works in Google's driverless car division and used to work at Tesla, includes in his survival packs a notice to put on gasoline-engine cars. It reads, ''EV charging spaces are functional reserve spaces, just like disabled drivers spaces.'' The tag goes on to say that blocking the spaces ''is not only inconsiderate, it is illegal in many areas.'' But it also includes stickers that inform other drivers that it is all right to unplug a car if it is fully charged, and others that ask, ''Can you plug me in when you're done?''
The competition has led people to judge one another's cars and which ones deserve charging priority. Owners of all-electric cars see themselves as most entitled to the chargers, since they have no Plan B. One rung down are ''plug-in hybrids,'' which use electricity but also can use gas, followed by hybrids, and then two groups for which the owners of pure electric cars reserve particular disdain: gas cars and, perhaps surprisingly, Teslas. (The $100,000 Teslas, as much as three times the cost of other plug-ins, have a range of several hundred miles and so, theoretically, do not need the charge spots.)
Jamie Hull, who drives an electric Fiat, grew apoplectic recently when she discovered herself nearly out of a charge, unable to get home to Palo Alto. She found a charging station, but a Tesla was parked in it and not charging. She ordered a coffee, waited for the driver to return and, when he did, asked why he was taking a spot when he was not charging. She said the man had told her that he was going to run one more errand and walked off.
''I seriously considered keying his car,'' she said.
Among its own customers, Tesla has faced similar issues. In fact, some Tesla drivers reported having received a letter in August from the company saying that they were overusing its network of superfast charging stations '-- meant to aid long-distance travel '-- and that they should unplug once charged.
Ms. Hull, an executive at Evernote, a software company where electric vehicles outnumber chargers 60 to 12, the scramble for chargers leads to curious behavior. The company does have a sign-up sheet for reserving charging time. But it is not uncommon for people to leave their cars too long, or for members of the public to take the spots or even, Ms. Hull said, for people to work outside deals.
''There's an entire black market for trading spots,'' she said. For example, employees will give their spots to friends or managers as favors, Ms. Hull said.
At some other Silicon Valley companies where workers own a lot of electric vehicles, employees will get a note from someone in their department when someone is about to unplug and open up a spot. The legal department might band together, for instance, or the communications department, creating little sharing fiefs.
To Ms. Hull, the culture stems in part from the way electric car owners have grown used to perks, like getting state and federal subsidies for buying green cars, or permission to use the car pool lane. So when it comes to unplugging someone, well, they feel deserving. ''They're not bad people, necessarily,'' she said. ''They may have some amount of entitlement.''
California's ambitious renewable energy bill signed into law | Reuters
LOS ANGELES Governor Jerry Brown on Wednesday signed into law a bill requiring California to produce half its electricity from renewable sources by 2030, a goal he said was key to combating global climate change.
"A decarbonized future is the reason we're here," Brown said at a signing ceremony in Los Angeles. "What we're doing here is very important, especially for low-income families."
The bill also requires a doubling of energy efficiency in buildings by 2030.
Environmentalists cheered the move even though language to cut petroleum use by 50 percent over 15 years was stripped from the bill after objections from the oil industry and some lawmakers.
"I'm disappointed that we don't have the petroleum piece," bill author Senator Kevin de Leon said after the signing. "But two measures dealing with the energy efficiency and renewable energy are far-reaching and the most advanced in the world."
Environmentalists also expressed disappointment that the bill did not require a cut in gasoline and diesel use in the most-populous U.S. state.
"There's no question that increasing the amount of power California gets from renewable sources is good for our state," said Rebecca Claassen, Santa Barbara County organizer at Food & Water Watch. "But cutting emissions and increasing clean energy use only gets us part of the way," she said.
Ann Notthoff of the Natural Resources Defense Council called the oil industry's campaign against the provision "deplorable," but vowed to fight on.
"Despite Big Oil's smokescreen, one thing is clear: California's leadership and communities across the state are more committed than ever to reduce our dependence on petroleum and eliminate its devastating impacts on the health and well-being of Californians," she said in a blog post.
Catherine Reheis-Boyd, president of the Western States Petroleum Association, said the oil industry will keep working with Brown and others on strategies to protect the environment and the economy.
"We also take great pride in knowing that Californians consume the cleanest gasoline and diesel worldwide," she said.
A separate bill, which would have mandated an 80 percent reduction in greenhouse gas emissions by 2050 from 1990 levels, was also pulled near the end of the legislative session but is expected to be reintroduced next year.
In late September, the state's Air Resources Board readopted its controversial low carbon fuel standard program, requiring a 10 percent reduction in carbon intensity of transportation fuels burned in the state, a victory for environmentalists.
(Additional reporting by Rory Carroll and Sharon Bernstein; editing by Richard Chang, G Crosse and David Gregorio)
California Governor Jerry Brown speaks at a meeting with Chinese President Xi Jinping and five United States governors to discuss clean technology and economic development in Seattle, Washington September 22, 2015.
The latest on allegations that former United Nations General Assembly President Josh Ashe accepted bribes to help a Chinese real estate mogul and other businesspeople gain investments and government contracts (all times local):
3:55 p.m.
The government of Antigua and Barbuda says a former United Nations General Assembly president who has been charged in connection with a bribery conspiracy holds no position in the government.
A government statement sent to The Associated Press on Tuesday says John Ashe was U.N. ambassador under the former United Progressive Party government and was replaced when the Labor Party government was elected in 2014.
It says the government learned of Ashe's arrest from media reports. It noted that the complaint also identifies senior officials in the former government as well as the former prime minister, Baldwin Spencer.
The statement says, "The present government of Antigua and Barbuda has implemented and upholds the highest standards of good governance and accountability." The government says it will continue to monitor the situation.
'--'--'--
3:40 p.m.
The current president of the U.N. General Assembly says it will be up to member states to decide whether to create more transparent vetting and disclosure requirements for the world body.
Mogens Lykketoft also told reporters Tuesday that there has been no discussion of doing any review of former General Assembly President John Ashe's record in the post.
Lykketoft says, "Corruption has no place in the United Nations or anywhere else."
He added that "if there are more people in the U.N. involved in this, I don't know."
Lykketoft took up his post less than a month ago. He says so far there have been no private donor subsidies for travel during his presidency.
'--'--'--
12:55 p.m.
The United Nations is defending itself against a prosecutor's claims that a bribery case against a former United Nations General Assembly president and five others might just be the tip of the iceberg.
The spokesman for U.N. Secretary-General Ban Ki-moon told reporters Tuesday that "corruption is not business as usual at the U.N."
Spokesman Stephane Dujarric spoke shortly after U.S. Attorney Preet Bharara told reporters his investigation was continuing and his office plans to be asking if bribery is "business as usual at the U.N. as the probe proceeds."
Former President John Ashe was arrested Tuesday, a year after finishing a yearlong stint in the largely ceremonial post. It wasn't clear who will represent Ashe in court against charges he accepted over $1 million in bribes.
'--'--'--
11:55 a.m.
A federal prosecutor has formally announced a bribery conspiracy case against a former United Nations General Assembly president, a billionaire Chinese real estate mogul and four others.
U.S. Attorney Preet Bharara in New York said Tuesday that John Ashe sold himself and the global institution he led while he served in the largely ceremonial post for a year in 2013 and 2014. He also was an ambassador from Antigua and Barbuda at the time.
The prosecutor says the charges show that the "cancer of corruption that plagues too many local and state governments infects the United Nations as well."
It was not immediately clear who will represent Ashe in court.
The billionaire businessman, Ng Lap Seng, and his chief assistant were arrested two weeks ago. Their lawyers didn't immediately return messages seeking comment.
'--'--'--
9:05 a.m.
U.S. prosecutors say former United Nations General Assembly President John Ashe took more than $500,000 in bribes from a Chinese real estate mogul and other businesspeople.
In exchange for the money, federal prosecutors say, Ashe used his position as Permanent Resident to the United Nations for Antigua and Barbuda and General Assembly head to help the businesspeople gain investments and government contracts from 2011 through 2014.
Prosecutors say some of the bribe money was used to pay for Ashe's family vacation and to construct a basketball court at his home in Dobbs Ferry, New York.
In all, six people, including another diplomat, were ensnared in the probe.
Ashe was arrested Tuesday and is being held.
No one answered a phone call to the mission for Antigua.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice COVER PAGE INTELLECTUAL PROPERTY [RIGHTS] CHAPTER Consolidated Text CLEAN 05 Oct 2015
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 2 CHAPTER QQ1 {INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY} {Section A: General Provisions} Article QQ.A.1: {Definitions} For the purposes of this Chapter intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement. Article QQ.A.X: {Objectives} The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology , to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights a nd obligations. Article QQ.A.Y: {Principles} 1. Parties may, in formulating or amending their laws and regulations, a dopt measures necessary to protect public health and nutrition, and to promote the public int erest in sectors of vital importance to their socio-economic and technological development, provi ded that such measures are consistent with the provisions of this Chapter. 2. Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affec t the international transfer of technology. QQ.A.Z: {Understandings in respect of this Chapter} Having regard to the underlying public policy objectives of national system s, the Parties recognize the need to: · promote innovation and creativity ; · facilitate the diffusion of information, knowledge, technology, culture and the art s; and 1 Negotiator's Note: Section and Article titles and headings appear in this text on a without prejudice basis. Parties have agreed to defer consideration of the n eed for, and drafting of, Section and Article titles and headings. Such titles or headings that appear in br aces (i.e., ''{ }'') are included for general reference and information purposes only.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 3 · foster competition and open and efficient markets ; through their intellectual property systems, while respecting the princi ples of transparency and due process, and taking into account the interests of relevant stakeholde rs, including rights holders, service providers, users and the public. Article QQ.A.5: {General Provisions / Nature and Scope of Obligations} Each Party shall give effect to the provisions of this Chapter. A Party may, but sha ll not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protec tion and enforcement does not contravene the provisions of this Chapter. Each Party s hall be free to determine the appropriate method of implementing the provisions of this Cha pter within its own legal system and practice. Article QQ. A.7: {Understandings Regarding Certain Public Health Measures} 1. The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2). In particular, the Parties have reached the following understandings regarding this Chapter: (a) The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health. Accordingly, while reiterating thei r commitment to this Chapter, the Parties affirm that this Chapter can and should b e interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all. Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency. (b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman' s statement accompanying the Decision (JOB(03)/177, WT/GC/M/82), as we ll as the Decision on the Amendment of the TRIPS Agreement, adopted by the Ge neral Council, 6 December 2005 and the WTO General Council Chairperson's stat ement accompanying the Decision (WT/GC/M/100) (collectively, the ''TRIPS /health solution''), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution. (c) With respect to the aforementioned matters, if any waiver of any provisi on of the TRIPS Agreement, or any amendment of the TRIPS Agreement, enter s into force with respect to the Parties, and a Party's application of a measure in conformity
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 4 with that waiver or amendment is contrary to the obligations of this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the waiver or amendment. 2. Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS Agreement done at Geneva on December 6, 2005. Article QQ.A.8: { International Agreements} 1. Each Party affirms that it has ratified or acceded to the following agreements: (a) Patent Cooperation Treaty (1979); (b) Paris Convention for the Protection of Industrial Property (1967); and (c) Berne Convention for the Protection of Literary and Artistic Works (1971). 2. Each Party shall ratify or accede to each of the following agree ments, where it is not already a Party to such agreement, by the date of entry into force of this Agreement for the Party concerned: (a ) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989); (b) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980 ; (c) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention) ; (d) Singapore Treaty on the Law of Trademarks (2006) 2; (e) WIPO Copyright Treaty (1996); and (f) WIPO Performances and Phonograms Treaty (1996). 2 A Party may satisfy the obligation in Article QQ.A .8.2(a) and (d) by ratifying or a cceding to either the Protocol relating to the Madrid Agreement concernin g the International Registration of Marks (1989) or the Singapore Treaty on the Law of Trademarks (2006).
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 5 Article QQ.A.9: {National Treatment} 1. In respect of all categories of intellectual property covered in this Chapter,3 each Party shall accord to nationals 4 of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection 5 of such intellectual property rights. 2. With respect to secondary uses of phonograms by means of analog comm unications and free over-the-air broadcasting and other non-interactive communicat ions to the public, however, a Party may limit the rights of the performers and producers of t he other Party to the rights its persons are accorded within the jurisdiction of the other Party. 3. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is: (a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and (b) not applied in a manner that would constitute a disguised restriction on trade . 4. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights. 3 For greater certainty, nothing in this Agreement limits Parties from taking an otherwise permissible derogation from national treatment with respect to copyrights and related righ ts that are not covered under Section G (Copyright and Related Rights) of this Chapter. 4 For purposes of Articles (QQ.A.9.1-2 (National Trea tment and Judicial/Admin Procedures), QQ.D.2.a (GIs/Nationals), and QQ.G.14.1 (Performers/Phonogra ms/Related Rights)), a ''national of a Party'' shall mean, in respect of the relevant right, a person of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in (Article QQ.A.8 (International Agreements)) and th e TRIPS Agreement. Negotiator's note: Parties to remem ber to insert correct cross references to other treaties including WPPT (Article 3) depending on whether cha pter includes an obligation to accede to a list of treaties. 5 For purposes of this paragraph (Article QQ.A.9.1), ''protection'' shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Furthe r, for purposes of paragraph 1, ''protection '' also includes the prohibition on circumvention of e ffective technological measures set out in Article QQ.G.10 a nd the provisions concerning rights management information set out in Article QQ.G.13. {For greater certainty}, ''matters affecting the use o f intellectual property rights covered by this Chapter'' in respect of works, performances and phonograms, incl ude any form of payment, such as licensing fees, royalties, equitable remuneration, or levies, in res pect of uses that fall under the copyright and relat ed rights in this Chapter.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 6 Article QQ.A.10: {Transparency} 1. Further to Article ZZ.2 {Publication} and QQ.H.3.1 {Enforcement Practices With Respect to Intellectual Property Rights}, each Party shall endeavor to make available on the Internet its laws, regulations, procedures and administrative ruling s of general application concerning the protection and enforcement of intellectual property rights . 2. Each Party shall, subject to its national law, endeavor to make ava ilable on the Internet information that it makes public concerning applications for trade marks, geographical indications, designs, patents and plant variety rights6 ,7. 3. Each Party shall, subject to its national law, make available on the Internet information that it makes public concerning registered or granted tradem arks, geographical indications, designs, patents and plant variety rights, sufficient to enable the public to become acquainted with the registration or granted rights 8. Article QQ.A.10 bis: {Application of Agreement to Existing Subject Matter and Prior Acts} 1. Except as it otherwise provides, including in Article QQ.G.8 (Berne 18/ TRIPS 14.6), this Chapter gives rise to obligations in respect of all subject m atter existing at the date of entry into force of this Agreement that is protected on that dat e in the territory of the Party where protection is claimed, or that meets or comes subsequent ly to meet the criteria for protection under this Chapter. 2. Except as provided in Article QQ.G.8 (Berne 18/TRIPS 14.6), a Party shal l not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory. 3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement. Article QQ.A.11: {Exhaustion of IP Rights} Nothing in this Agreement prevents a Party from determining whether an d under what conditions the exhaustion of intellectual property rights applies under its legal syst em9. 6 For greater certainty, paragraphs 2 and 3 are witho ut prejudice to a Party's obligations under QQ.C.7 {Electronic Trademarks System}. 7 For greater certainty, it is understood that parag raph 2 does not require Parties to make available th e entire dossier for the relevant application on the Internet . 8 For greater certainty, it is understood that parag raph 3 does not require P arties to make available th e entire dossier for the relevant registered or granted right on the Internet. 9 For greater certainty, this Article is without prej udice to any provisions addressing the exhaustion o f intellectual property rights in international agreem ents to which a Party is a party.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 7 Section B: Cooperation Article QQ.B.1: {Contact Points for Cooperation} Further to TT.3 {Contact Points for Cooperation and Capacity Building}, each Party may designate one or more contact points for the purpose of cooperation unde r this section. Article QQ.B.2: {Cooperation Activities and Initiatives} The Parties shall endeavor to cooperate on the subject matter covere d by this Chapter, such as through appropriate coordination, training and exchange of information between t he intellectual property offices of the Parties, or other institutions as de termined by each Party. Cooperation may cover such areas as: (a) developments in domestic and international intellectual property policy ; (b) intellectual property administration and registration systems ; (c) education and awareness relating to intellectual property ; (d) intellectual property issues relevant to: (i) small and medium-sized enterprises ; (ii) science, technology & innovation activities ; and (iii) the generation, transfer and dissemination of technology. (e) policies involving the use of intellectual property for research, innovation and economic growth ; (f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO ; and (g) technical assistance for developing countries. Article QQ.B.3: {Patent Cooperation/Work Sharing} 1. The Parties recognize the importance of improving quality and efficienc y in their patent registration systems and simplifying and streamlining their patent office procedures and processes for the benefit of all users of the system and the public as a whole. 2. Further to paragraph 1 , the Parties shall endeavor to cooperate among their respective patent offices to facilitate the sharing and use of search and examination work of other Parties. This may include: (a) making search and examination results available to the patent offices of
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 8 other Parties10; and (b) exchanges of information on quality assurance systems and quality standards relating to patent examination. 3. In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavor to cooperate to reduce differences in the procedures and processes of their respective patent offices. 4. Parties recognize the importance of giving due consideration to ratifyi ng or acceding to the Patent Law Treaty ; or in the alternative adopting or maintaining procedural standards consistent with the objective of the Patent Law Treaty. Article QQ.B.x: {Public Domain} 1. The Parties recognize the importance of a rich and accessible public domain. 2. The Parties also acknowledge the importance of informational materials, s uch as publicly accessible databases of registered intellectual property rig hts that assist in the identification of subject matter that has fallen into the public domain. Article QQ.B.4 : {Cooperation on Request} Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request and on terms and conditions mutually agreed upon between the Parties involved. Article QQ.B.xx: {Cooperation in the Areas of Traditional Knowledge} 11 XX.1. The Parties recognize the relevance of intellectual property syst ems and traditional knowledge associated with genetic resources to each other, when t hat traditional knowledge is related to those intellectual property systems. XX.2. The Parties shall endeavor to cooperate through their respective age ncies responsible for intellectual property or other relevant institutions to enhance the understanding of issues connected with traditional knowledge associated wit h genetic resources, and genetic resources. XX.3. The Parties shall endeavor to pursue quality patent examination. This may include: 10 Parties recognize the importance of multilateral efforts to promote the sh aring and use of search and examination results, with a view to improving the quality of search and examination processes and to reducing the costs for both applicants and patent offices. 11 Negotiator's Note: NZ agrees ad ref to remove form er paragraph 6 from this Chapter on the basis that it is placed in Chapter AA.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 9 (a) in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account; (b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; (c) where applicable and appropriate, the use of databases or digital libra ries containing traditional knowledge associated with genetic resources; and (d) cooperation in the training of patent examiners in the examination of pat ent applications related to traditional knowledge associated with genetic resources. {Section C: Trademarks} Article QQ.C.1: {Types of Signs Registrable as Trademarks} No Party may require, as a condition of registration, that a sign be visua lly perceptible, nor may a Party deny registration of a trademark solely on the ground that the sign of whic h it is composed is a sound. Additionally, each Party shall make best effort s to register scent marks. A Party may require a concise and accurate description, or graphic al representation, or both, as applicable, of the trademark. Article QQ.C.2: {Collective and Certification Marks} Each Party shall provide that trademarks shall include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its domestic law, provided that such marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system12 . Article QQ.C.3: {Use of Identical or Similar Signs} Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties not having the owner's consent from using in the course of 12 For purposes of this Chapter, geographical indication means indications that identify a good as originat ing in the territory of a party, or a region or localit y in that territory, where a given quality, reputat ion, or other characteristic of the good is essentially attributa ble to its geographical origin. Consistent with this definition, any sign or combination of signs shall be eligible for protection under one or more of the legal means for protecting GIs, or a combination of such means. {Cha ir's note: address placement in legal scrub.}
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 10 trade identical or similar signs, including subsequent geographical indications,13 ,14 for goods or services that are related to those goods or services in respect of w hich the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. Article QQ.C.4: {Exceptions} Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties 15. Article QQ.C.5: {Well Known Trademarks} 1. No Party may require as a condition for determining that a trademark i s well-known that the trademark has been registered in the Party or in another juris diction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark. 2. Article 6 bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, 16 whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use. 3. Each Party recognizes the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Ass embly of WIPO. 4. Each Party shall provide for appropriate measures to refuse the application or cancel the registration and prohibit the use of a trademark that is i dentical or similar to a well-known trademark, 17 for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well known trademark . A Party may 13 For greater certainty, the exclusive right in this Article applies to cases of unauthorized use of ge ographical indications with goods for which the trademark is r egistered, where the use of that geographical indication in the course of trade would result in a likelihood of confusion as to source of the goods. 14 For greater certainty, the Parties understand that Article QQ.C.3 should not be interpreted to affect their rights and obligations under articles 22 and 23 of t he TRIPs Agreement. 15 Drafter's note: For greater certainty, the Parties understand that Article QQ.C.4 applies to provision s relating to rights conferred by trademarks in this Chapter. 16 Where a Party determines whether a mark is well-kn own in the Party, the Party need not require that the reputation of the trademark extend beyond the secto r of the public that normally deals with the relevant goods or services. 17 It is understood that such a well-known trademark i s one that was already well-known before the registration or use of the first-mentioned trademar k.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 11 also provide such measures inter alia in cases in which the subsequent trademark is likely to deceive. Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural A spects} Each Party shall provide a system for the examination and registration of trademarks which shall include, inter alia: (a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark ; (b) providing the opportunity for the applicant to respond to communications from the competent authorities, to contest an initial refusal, and to appe al judicially any final refusal to register a trademark ; (c) providing an opportunity to oppose the registration of a trademark or to seek cancellation18 of a trademark ; and (d) requiring that administrative decisions in opposition and cancellation proceedings be reasoned and in writing. Written decisions may be provided electronically. Article QQ.C.7: {Electronic Trademarks System} Each Party shall provide: (a) a system for the electronic application for, and maintenance of, trademarks ; and (b) a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks. Article QQ.C.8: {Classification of Goods and Services} Each Party shall adopt or maintain a trademark classification syst em that is consistent with the Nice Agreement Concerning the International Classification of Goods and Ser vices for the Purposes of the Registration of Marks (Nice Classification) of June 15, 1957, as revised and amended. Each Party shall provide that: (a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes establi shed by the Nice Classification 19; and 18 For greater certainty, cancellation for purposes o f this Section may be implemented through nullity o r revocation proceedings. 19 Parties that rely on translations of the Nice Clas sification are required to follow updated versions of the Nice Classification to the extent that official transl ations have been issued and published.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 12 (b) goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified i n the same class of the Nice Classification. Conversely, each Party shal l provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification. Article QQ.C.9: {Term of Protection for Trademarks} Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years. Article QQ.C.10: {Non-recordal of a license} No Party may require recordal of trademark licenses: to establish the validity of the license; or as a condition for use of a trademark by a licensee, to be deemed to constitute use by the holder in proceedings relating to the acquisition, maintenance and enforcement of trademarks. Article QQ.C.12: {Domain Name Cybersquatting} 1. In connection with each Party's system for the management of its c ountry-code top-level domain (ccTLD) domain names, the following shall be available: (a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed t o resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and (b) online public access to a reliable and accurate database of contact information concerning domain-name registrants ; in accordance with each Party's laws and, where applicable, releva nt administrator policies regarding protection of privacy and personal data. 2. In connection with each Party's system for the management of ccTLD domain names, appropriate remedies20 , shall be available, at least in cases where a person registers or holds, with a bad faith intent to profit, a domain name that is identica l or confusingly similar to a trademark. 20 It is understood that such remedies may but need no t include, for example, revocation, cancellation, transfer, damages, or injunctive relief.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 13 {Section D: Geographical Indications} Article QQ.D.1: {Recognition of Geographical Indications} The Parties recognize that geographical indications may be protected through a trademark or sui generis system or other legal means. Article QQ.D.2: {Administrative Procedures for the Protection or R ecognition of Geographical Indications} Where a Party provides administrative procedures for the protection or recogniti on of geographical indications, whether through a trademark or a sui generis syst em, the Party shall with respect to applications for such protection or petitions for such recognition: (a) accept those applications or petitions without requiring intercession by a Party on behalf of its nationals21 ; (b) process those applications or petitions without imposition of overly burdensome formalities; (c) ensure that its regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions; (d) make available information sufficient to allow the general public to obtain guidance concerning the procedures for filing applications or petitions and the processing of those applications or petitions in general; and allow applicants, petitioners, or their representatives to ascertain the sta tus of specific applications and petitions; (e) ensure that those applications or petitions are published for opposition and provide procedures for opposing geographical indications that are the subject of applications or petitions; and (f) provide for cancellation 22 of the protection or recognition afforded to a geographical indication. Article QQ.D.3: {Grounds of Opposition and Cancellation} 23 1. Where a Party protects or recognizes a geographical indication through the procedures referred to in Article QQ.D.2, that Party shall provide proc edures that allow 21 Subparagraph (a) shall also apply to judicial proc edures that protect or recognize a geographical ind ication. 22 For greater certainty, cancellation for purposes o f this Section may be implemented through nullity o r revocation proceedings. 23 A Party is not required to apply Article QQ.D.3 to geographical indications for wines and spirits or applications for such geographical indications.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 14 interested persons to object to the protection or recognition of a geographical indication, and that allow for any such protection or recognition to be refused or otherwi se not afforded, at least on the following grounds: (a) the geographical indication is likely to cause confusion with a trade mark that is the subject of a pre-existing good faith pending application or registration in the territory of the Party; (b) the geographical indication is likely to cause confusion with a pre -existing trademark, the rights to which have been acquired in accordance with the Party's law; and (c) the geographical indication is a term customary in common language as the common name24 for the relevant goods in that Party's territory. 3. Where a Party has protected or recognized a geographical indication through the procedures referred to in Article QQ.D.2, that Party shall provide proce dures that allow for interested persons to seek the cancellation of a geographical indicati on, and that allow for the protection or recognition to be cancelled, at least on the grounds lis ted in paragraph 1. A Party may provide that the grounds in QQ.D.3.1 (a), (b) and (c) shall apply a s of the time of filing the request for protection or recognition of a geographical indica tion in the territory of the Party 25. 2 bis . No Party shall preclude the possibility that the protection or recogniti on of a geographical indication may be cancelled, or otherwise cease, on the basis that the protected or recognized term has ceased meeting the conditions upon whic h the protection or recognition was originally granted in the Party. 3. Where a Party has in place a sui generis system for protecting unregistered geographical indications by means of judicial procedures, a Party shal l provide that its judicial authorities have the authority to deny the protection or recognition of a geographical indication where any of the circumstances identified in paragraph 1(i), paragraph 1(ii) and paragraph 1(iii) have been established 26. Such a Party shall also provide a process that allows interested persons to commence a proceeding on such grounds. 24 For greater certainty, where a Party provides for the procedures in QQ.D.2 and QQ.D.3 to be applied t o geographical indications for wines and spirits or a pplications for such geographical indications, the Parties understand nothing shall require a Party to protect or recognize a geographical indication of any othe r Party with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that P arty. 25 For greater certainty, where the grounds listed in paragraph 1 did not exist in a Party's law as of the time of filing of the request for protection or recognit ion of a geographical indication under Article QQ.D .2, a Party is not required to apply such grounds for the purposes of paragraph 2 or Article QQ.D.3.4 in rel ation to such geographical indication. 26 As an alternative to paragraph 3, where a Party ha s in place a sui generis system of the type referred to in paragraph 3 as of the relevant date in QQ.D.5.6, th at Party shall at least provide that its judicial authorities have the authority to deny the protection or recogn ition of a geographical indication where the circum stances identified in paragraph 1(c) have been established.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 15 4. Where a Party provides protection or recognition of any geographical indicat ion, pursuant to the procedures referred to in Article QQ.D.2, to the translation or: transliteration of such geographical indication, the Party shall make available procedures that are equivalent to, and grounds that are the same as, those set forth in paragraphs 1 and 2 with respect to such translation or transliteration. Article QQ.D.8: {Guidelines for determining whether a term is the term customary in the common language } With respect to the procedures in D.2 and D.3 in determining whether a term is the term customary in common language as the common name for the releva nt goods in a Party's territory , that Party's authorities shall have the authority to take into account how con sumers understand the term in that Party's territory. Factors relevant to such consum er understanding may include: (a) whether the term is used to refer to the type of product in question, as indicated by competent sources such as dictionaries, newspapers, and relevant websites; and (b) how the product referenced by the term is marketed and used in trade in the territory of that Party. Article QQ.D.9: {Multi-Component Terms} With respect to the procedures in D.2 and D.3, an individual component of a multi-component term that is protected as a geographical indication in a P arty shall not be protected in that Party where the individual component is a term cust omary in the common language as the common name for the associated goods. Article QQ.D.6: {Date of Protection of a Geographical Indication} Where a Party grants protection or recognition to a geographical indication through the procedures referred to in Article QQ.D.2, such protection or recognition shall commence no earlier than the filing date27 in the Party or the registration date in the Party, as applicable. Article QQ.D.13: {Country Names} 28 Each Party shall provide the legal means for interested parties to pre vent commercial use of country names of the Parties in relation to goods in a manner which misleads consumers as to the origin of such goods. 27 For greater certainty, the filing date referenced in this paragraph includ es the priority filing date under the Paris Convention, where applicable. 28 Negotiators ' note: Legal scrub to determine placement in TM vs GI vs standalone.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 16 Article QQ.D.5: {International Agreements} 1. Where a Party protects or recognizes a geographical indication pursuant to an international agreement as of the applicable date determined in paragrap h 6 involving a Party or a non-Party, and where that geographical indication is not prot ected pursuant to the procedures in Article QQ.D.229 or QQ.D.3.3, that Party shall: (a) apply at least procedures and grounds that are equivalent to those in QQ.D.2(e) and Article QQ.D.3.1, as well as (i) make available information sufficient to allow the general public t o obtain guidance concerning the procedures for protecting or recognizing such a geographical indication; and allow interested persons to ascertain the status of requests for protection or recognition; (ii) make available to the public over the Internet details regarding the terms that the Party is considering recognizing or protecting through an international agreement with a Party or a non-party including specifying whether protection or recognition is being considered for any translations or transliterations of those terms, and with respect to multi-component terms, specifying the components, if any, for which protection or recognition is being considered, or the components that are disclaimed; (iii) in respect of opposition procedures, provide a reasonable period of time for interested persons to oppose to the protection or recognition of those terms. That period shall provide a meaningful opportunity for interested persons to participate in an opposition process; and (iv) inform the other Parties, no later than the start of that opposition period, of the opportunity to oppose. 2. In respect of existing international agreements that permit the prote ction or recognition of a new geographical indication, a Party shall 30,31: (a) apply QQ.D.5.1.(a)(ii); 29 Each Party shall apply QQ.D.8 and QQ.D.9 when dete rmining whether to grant protection or recognition of a geographical indication pursuant to paragraph 1 . 30 In respect of existing international agreements th at have geographical indications that have been ide ntified but have not yet received protection or recognition in the territory of the Party who is a party to that agreement, the Party may fulfil the obligations of P aragraph 2 by complying with the obligations of Par agraph 1. 31 A Party may comply with this Article by applying A rticle QQ.D.2 and Article QQ.D.3.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 17 (b) provide an opportunity for interested parties to comment regarding the protection or recognition of those terms for a reasonable period of time before such a term is protected or recognized; and (c) inform the other Parties of the opportunity to comment no later than the start of the period for comment. 3. For the purposes of this Article, a Party shall not preclude the possibili ty that the protection or recognition of a geographical indication could cease. 4. For purposes of this Article, a Party is not required to apply Article QQ.D.3, or obligations equivalent to Article QQ.D.3, to geographical indications for wines and s pirits or applications for such geographical indications. 5. Protection or recognition provided pursuant to paragraph 1 shall commence no earlier than the date on which such agreement enters into force, or if that Party grants such protection or recognition on a date after entry into force of the agreement, on that later date. 6. No Party shall be required to apply this Article, to geographical i ndications that have been specifically identified in, and that are protected or recognized pursuant to, an international agreement involving a Party or a non-Party, provided that: (a) such agreement was concluded or agreed in principle32 prior to the date of conclusion or agreement in principle of this Agreement, or in the alternative ; (b) such agreement was ratified by a Party prior to the date of ratification of this Agreement by that Party, or in the alternative; (c) such agreement entered into force for a Party prior to the date of entry into force of this Agreement for that Party. {Section E: Patents / Undisclosed Test or Other Data} {Subsection A: General Patents} Article QQ.E.1: {Patentable Subject matter} 1. Subject to paragraphs 3 and 4, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that t he invention is new, involves an inventive step, and is capable of industrial application 33. 32 For the purpose of this Article, ''agreed in princi ple'' refers to an agreement with another government or government entity or international organization in respect of which a political understanding has been reached and the negotiated outcomes of the agreement have be en publically notified/announced. 33 For purposes of this Section, a Party may deem the terms "inventive step" and "capable of industrial application" to be synonymous with the terms "non-o bvious" and "useful", respectively. In determinations
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 18 2. Subject to paragraphs 3 and 4 and consistent with paragraph 1, each Party confi rms that patents are available for inventions claimed as at least one of the following: new uses of a known product, new methods of using a known product, or new processes of usin g a known product. A Party may limit such processes to those that do not cl aim the use of the product as such34 . 3. Each Party may exclude from patentability inventions, the prevention wit hin their territory of the commercial exploitation of which is necessary to prot ect ordre public or morality, including to protect human, animal or plant life or health or to avoi d serious prejudice to nature or the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law. Each Party ma y also exclude from patentability: diagnostic, therapeutic, and surgical methods for the treatmen t of humans or animals; animals other than microorganisms; and essentially biol ogical processes for the production of plants or animals, other than non-biological and microbiological processes. 4. Each Party may also exclude from patentability plants other than mi croorganisms. However, consistent with paragraph 1 and subject to paragraph 3, each Pa rty confirms that patents are available at least for inventions that are derived from plants 35. Article QQ.E.2 : {Grace Period} Each Party shall disregard at least information contained in public disc losures used to determine if an invention is novel or has an inventive step if the public disclosure 36,37: (a) was made by the patent applicant or by a person who obtained the information directly or indirectly from the patent applicant; and (b) occurred within 12 months prior to the date of filing of the application in the territory of the Party. regarding inventive step (or non-obviousness), each Party shall consider whether the claimed invention would have been obvious to a person skilled or having ord inary skill in the art having regard to the prior art. 34 Drafter's Note: The Parties understand that Article QQ.A.5 applies to the provisions of this Chapter, including this paragraph. Accordingly, CL no longer believes that having an express reference is necessary. 35 Drafter's Note: The Parties understand that Article QQ.A.5 applies to the provisions of this Chapter, including this paragraph. Accordingly, CL no longer believes that having an express reference is necessary. 36 A Party shall not be required to disregard informa tion contained in applications for, or registrations of, intellectual property rights made available to the public or published by a patent office unless erron eously published or unless the application was filed witho ut the consent of the inventor or their successor in title by a third party who obtained the information directly or indirectly from the inventor. 37 For greater certainty, a Party may limit applicati on of this provision to disclosures made by or obta ined directly or indirectly from the inventor or joint i nventor. For greater certainty, a Party may provide that, for purposes of this article information obtained direc tly or indirectly from the patent applicant may be information contained in the public disclosure that was authorized by, or derived from, the patent appl icant.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 19 Article QQ.E.3: {Patent Revocation} 1. Each Party shall provide that a patent may be cancelled, revoked or nul lified only on grounds that would have justified a refusal to grant the patent. A Party m ay also provide that fraud, misrepresentation, or inequitable conduct may be the basis for ca ncelling, revoking or nullifying a patent or holding a patent unenforceable. 2. Notwithstanding Paragraph 1, a Party may provide that a patent may be revoked, provided it is done in a manner consistent with Article 5A of the Paris Convention and the TRIPS Agreement. Article QQ.E.4: {Exceptions} Each Party may provide limited exceptions to the exclusive rights c onferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploit ation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. Article QQ.E.5: {Other use without authorization of the right holder} The Parties understand that nothing in this Chapter limits a Party's rights and oblig ations under Article 31 of the TRIPS Agreement, or waivers or amendments to that Artic le that the Parties accept38 . Article QQ.E.6: {Patent filing} Each Party shall provide that where an invention is made independently by more than one inventor, and separate applications claiming that invention are filed wit h or for the relevant authority of the Party, that Party shall grant the patent on the applicati on that is patentable and that has the earliest filing, or if applicable, priority date 39, unless that application has, prior to publication 40, been withdrawn, abandoned or refused. 38 Drafters note: The Parties have affirmed TRIPS Art icle 28 in Chapter AA, and therefore do not believe that an additional reference in this Article is necessar y. Accordingly, US agrees to withdraw the reference to TRIPS Article 28. 39 A Party shall not be required to apply this provis ion in cases involving derivation or in situations involving any application that has or had at any time at leas t one claim having an effective filing date befo re this agreement comes into force or any application that has or had at any time a priority claim to an application that contains or contained such a claim. 40 For greater certainty, a Party may grant the paten t to the subsequent application that is patentable, when an earlier application has been withdrawn, abandoned, or refused, or is not prior art against the subsequent application.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 20 Article QQ.E.7: {Amendments, corrections and observations} Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications41 . Article QQ.E.11: {Publication of Patent Applications} 1. Recognizing the benefits of transparency in the patent system, each Party shall endeavor to publish unpublished pending patent applications promptly after the expiry of 18 months from the filing date or, if priority is claimed, from the priority date. 2. Where a pending application is not published promptly under paragraph 1, Parties shall publish such application or the corresponding patent as soon as practicable. 3. Each Party shall provide that an applicant may request the early publi cation of an application prior to the expiry of the period mentioned in paragraph 1. Article QQ.E.11 bis: {Information relating to published patent applications and issued patents} For published patent applications and issued patents, and in accordance wit h the Party's requirements for prosecution of such applications and patents, each Party shall make available to the public at least the following information, to the exte nt that such information is in the possession of the competent authorities and is generated on or a fter the date of entry into force of the Agreement for that Party: (a) search and examination results, including details of, or information related to, relevant prior art searches; (b) non confidential communications from applicants, where appropriate; and (c) patent and non-patent related literature citations submitted by appli cants, and relevant third parties. Article QQ.E.12: {Patent Term Adjustment for Patent Office Delays} 1. Each Party shall make best efforts to process patent applications i n an efficient and timely manner, with a view to avoiding unreasonable or unnecessary delays. 2. Each Party may provide procedures for patent applicants to request to expedite the examination of their patent application. 41 Each Party may provide that such amendments do not go beyond the scope of the disclosure of the invention as of the filing date.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 21 3. If there are unreasonable delays in a Party's issuance of patents , that Party shall provide the means to, and at the request of the patent owner, shall, adjust the term of the patent to compensate for such delays. 4. For purposes of this Article, an unreasonable delay at least shall i nclude a delay in the issuance of a patent of more than five years from the date of filing of the application in the territory of the Party, or three years after a request for examinat ion of the application has been made, whichever is later. A Party may exclude, from the determination of such delays, periods of time that do not occur during the processing42 of, or the examination of , the patent application by the granting authority; periods of time that a re not directly attributable 43 to the granting authority; as well as periods of time that are a ttributable to the patent applicant 44. {Subsection B: Data Protection for Agricultural Chemical Products} Article QQ.E.13: {Agricultural Chemical Products} 1. If a Party requires, as a condition for granting marketing approval 45 for a new agricultural chemical product, the submission of undisclosed test or other d ata concerning the safety and efficacy of the product 46, the Party shall not permit third persons, without the consent of the person who previously submitted such information, to market the same or a similar 47 product on the basis of that information or the marketing approval granted to the person who submitted such test or other data for at least ten ye ars48 from the date of marketing approval of the new agricultural chemical product in the territory of the Party. 42 For purposes of this paragraph, a Party may interp ret processing to mean initial administrative processing and administrative processing at the time of grant. 43 A Party may treat ''delays that are not directly att ributable to granting authority'' as delays that are outside the direction or control of the granting authority. 44 With regard to copyright and related rights piracy provided for by QQ.H.7.1 (Commercial Scale), a Part y may limit application of subparagraph (h) to the ca ses where there is an impact on the right holder's ability to exploit the work in the market. The date two yea rs after the signing of this Agreement, whichever is later for that Party. 45 For purposes of this Chapter, the term ''marketing approval'' is synonymous with ''sanitary approval '' under a Party's law. 46 Each Party confirms that the obligations of this Ar ticle apply to cases in which the Party requires the submission of undisclosed test or other data concer ning: (a) only the safety of the product, (b) only the efficacy of the product, or (c) both. 47 For greater certainty, for purposes of this Section , an agricultural chemical product is ''similar'' to a previously approved agricultural chemical product i f the marketing approval, or, in the alternative, the applicant's request for such approval, of that simi lar agricultural chemical product is based upon the undisclosed test or other data concerning the safet y and efficacy of the previously approved agricultu ral chemical product, or the prior approval of that pre viously approved product. 48 For greater certainty, a Party may limit the period of protection under Article QQ.E.13 to 10 years.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 22 2. If a Party permits, as a condition of granting marketing approval for a new agricultural chemical product, the submission of evidence of a prior marketing approval of the product in another territory, that Party shall not permit third persons, without the consent of the person who previously submitted undisclosed test or other data concerning the safety and efficacy of the product in support of that prior marketing approval, to market the same or a similar product based on that undisclosed test or other data, or other evidence of the prior marketing approval in the other territory, for at least ten years from the date of marketing approval of the new agricultural chemical product in the territory of the Party. 3. For the purposes of this Article, a new agricultural chemical product i s one that contains49 a chemical entity that has not been previously approved in the territory of the Party for use in an agricultural chemical product. {Subsection C: Measures Relating to Pharmaceutical / Regulated Products} Article QQ.E.14: {Patent Term Adjustment for Unreasonable Curtailment} 1. Each Party shall make best efforts to process applications for ma rketing approval of pharmaceutical products in an efficient and timely manner, with a vie w to avoiding unreasonable or unnecessary delays. 2. With respect to a pharmaceutical product 50 that is subject to a patent, each Party shall make available an adjustment 51 of the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term as a result of the marketing approva l process 52. 3. For greater certainty, in implementing the obligations of this Articl e, each Party may provide for conditions and limitations provided that the Party continues to give e ffect to this Article. 4. With the objective of avoiding unreasonable curtailment of the effective pat ent term, a Party may adopt or maintain procedures that expedite the examination of marketing approval applications. 49 For the purposes of this Article, a Party may trea t ''contain'' as meaning utilize. For greater certainty, for the purposes of this Article a Party may treat ''uti lize'' as requiring the new chemical entity to be primaril y responsible for the product's intended effect. 50 A Party may comply with the obligations of this pa ragraph with respect to a pharmaceutical product or, alternatively, with respect to a pharmaceutical subs tance. 51 For greater certainty, a Party may alternatively m ake available a period of additional sui generis protection to compensate for unreasonable curtailment of the e ffective patent term as a result of the marketing approval process. The sui generis protection shall confer the rights conferred by th e patent, subject to any conditions and limitations pursuant to Paragraph 3. 52 Notwithstanding Article QQ.A.10 bis, this Article shall apply to all applications for marketing approval filed after the date of entry into force of this Ar ticle for that Party.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 23 Article QQ.E.15: {Regulatory Review Exception} Without prejudice to the scope of, and consistent with, QQ.E.4, each Party shal l adopt or maintain a regulatory review exception53 for pharmaceutical products. Article QQ.E.16: {Pharmaceutical Data Protection/Protection of Undis closed Test or Other Data} 1. (a) If a Party requires, as a condition for granting marketing approval for a ne w pharmaceutical product, the submission of undisclosed test or other data concerning the safety and efficacy of the product 54 , the Party shall not permit third persons, without the consent of the person who previously submitted such information, to market the same or a similar 55 product on the basis of: (i) that information; or (ii) the marketing approval granted to the person who submitted such information for at least five years 56 from the date of marketing approval of the new pharmaceutical product in the territory of the Party. (b) If a Party permits, as a condition of granting marketing approval for a new pharmaceutical product, the submission of evidence of prior marketing approval of the product in another territory, the Party shall not permit t hird persons, without the consent of a person who previously submitted such information concerning the safety and efficacy of the product, to marke t a same or a similar product based on evidence relating to prior marketing approval in the other territory for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party. 53 For greater certainty, consistent with QQ.E.4, noth ing prevents a Party from providing that regulatory review exceptions apply for purposes of regulatory r eviews in that Party, in another country, or both. 54 Each Party confirms that the obligations of Articl e QQ.E.16, and QQ.E.20 apply to cases in which the Party requires the submission of undisclosed test or othe r data concerning: (a) only the safety of the product, (b) only the efficacy of the product, or (c) both. 55 For greater certainty, for purposes of this Sectio n, a pharmaceutical product is ''similar'' to a previously approved pharmaceutical product if the marketing ap proval, or, in the alternative, the applicant 's request for such approval, of that similar pharmaceutical produ ct is based upon the undisclosed test or other data concerning the safety and efficacy of the previousl y approved pharmaceutical product, or the prior app roval of that previously approved product. 56 For greater certainty, a Party may limit the perio d of protection under Article QQ.E.16.1 to 5 years, and the period of protection under Article QQ.E.20.1(a) to 8 years.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 24 2. Each Party shall57: (a) apply Article QQ.E.16.1 muta tis muta ndis for a period of at least three years with respect to new clinical information submitted as required in support of a marketing approval of a previously approved pharmaceutical product covering a new indication, new formulation or new method of administration; or alternatively, (b) apply Article QQ.E.16.1 muta tis muta ndis for a period of at least five years to new pharmaceutical products that contain a chemical entity that has not been previously approved in the Party 58. 3. Notwithstanding paragraphs 1 and 2 above and Article QQ.E.20, a Party may t ake measures to protect public health in accordance with: (a) the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) (the ''Declaration''); (b) any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration and in force between the Parties; and (c) any amendment of the TRIPS Agreement to implement the Declaration that enters into force with respect to the Parties. Article QQ.E.17: {} 1. If a Party permits, as a condition of approving the marketing of a pharm aceutical product, persons, other than the person originally submitting the safety and e fficacy information, to rely on evidence or information concerning the safety and effic acy of a product that was previously approved, such as evidence of prior marketing approva l by the Party or in another territory, that Party shall provide 59: (a) a system to provide notice to a patent holder 60 or to allow for a patent holder to be notified prior to the marketing of such a pharmaceutical product, th at such other person is seeking to market that product during the term of an 57 A Party that provides a period of at least 8 years of protection pursuant to QQ.E.16.1 is not require d to apply Article QQ.E.16.2. 58 For the purposes of this QQ.E.16.2(b), a Party may choose to protect only the undisclosed test or other data concerning the safety and efficacy relating to the chemical entity that has not been previously approved . 59 Drafter's Note: The Parties understand that QQ.A.5 applies to the provisions of this Chapter, including this paragraph. Accordingly, a Party may implement this Article by applying it to any pharmaceutical product that is subject to a patent. 60 For greater certainty, for purposes of this Articl e, a Party may provide that a ''patent holder'' includes a patent licensee or the authorized holder of marketin g approval.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 25 applicable patent claiming the approved product or its approved method of use; (b) adequate time and opportunity for such a patent holder to seek, prior to the marketing61 of an allegedly infringing product, available remedies in subparagraph (c); and (c) procedures, such as judicial or administrative proceedings, and expeditious remedies, such as preliminary injunctions or equivalent effective provisional measures, for the timely resolution of disputes concerning the validity or infringement of an applicable patent claiming an approved pharmaceutical product or its approved method of use. 2. As an alternative to paragraph 1, a Party shall instead adopt or maintai n an extra-judicial system which precludes, based upon patent-related information submit ted to the marketing approval authority by a patent holder or the applicant for a marketing approval, or based on direct coordination between the marketing approval authority and the patent office, the issuance of marketing approval to any third party seeking to m arket a pharmaceutical product subject to a patent claiming that product, unless by consent or acquiescence of the patent holder. Article QQ.E.20: {Biologics} 1. With regard to protecting new biologics, a Party shall either: (a) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic 62,63, provide effective market protection through the implementation of Article QQ.E.16.1 and Article QQ.E.16.3 mutatis mutandis for a period of at least 8 years from the date of first marketing approval of that product in that Party; or alt ernatively (b) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection: 61 For the purposes of Article QQ.E.17.1(b), a Party may treat ''marketing'' as commencing at the time of listing for purposes of the reimbursement of pharma ceutical products pursuant to a national healthcare program operated by a Party and inscribed in the An nex attached to the Chapter XX TPP Transparency Ann ex on Transparency and Procedural Fairness for Pharmac eutical Products and Medical Devices. 62 Nothing requires a Party to extend the protection o f this paragraph to: (a) any second or subsequent marketing approval of such a pharmaceutical product; or (b) a pharmaceutical product that is or contains a prev iously approved biologic. 63 Each Party may provide that an applicant may reques t approval of a pharmaceutical product that is a biologic under the procedures set forth in Article QQ.E.16.1(a)-(b) within 5 years of entry into force of this Agreement, provided that other pharmaceutical produc ts in the same class of products have been approved by the Party under the procedures set forth in Arti cle QQ.E.16.1(a)-(b) before entry into force of this Agreement.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 26 (i) through the implementation of Articles QQ.E.16.1 and QQ.E.16.3 mutatis mutandis for a period of at least 5 years from the date of first marketing approval of that product in that Party; (ii) through other measures; and (iii) recognizing that market circumstances also contribute to effective market protection to deliver a comparable outcome in the market. 2. For the purposes of this Section, each Party shall apply this provision to, at a minimum, a product that is, or alternatively, contains, a protein produced us ing biotechnology processes64 , for use in human beings for the prevention, treatment, or cure of a disease or condition. 3. Recognizing that international and domestic regulation of new pharmaceuti cal products that are or contain a biologic is in a formative stage and tha t market circumstances may evolve over time, the Parties shall consult after 10 years, or as otherwise decided by the TPP Commission, to review the period of exclusivity provided in paragraph 1 and the scope of application provided in paragraph 2, with a view to providing effective inc entives for the development of new pharmaceutical products that are or contain a bi ologic, as well as with a view to facilitating the timely availability of follow -on biosimilars, and to ensuring that the scope of application remains consistent with internationa l developments regarding approval of additional categories of new pharmaceutical products t hat are or contain a biologic. PLACEMENT TBD: To implement {and comply with} QQ.E.20.1(a) and (b), only the following TPP Parties have determined that they require change to the ir law, and thus require transition periods: (i) For (**), a transition of (x) years (ii) For (***), a transition of (y) years. Article QQ.E.21: {Definition of New Pharmaceutical Product} 65 For the purposes of Article QQ.E.16.1, a new pharmaceutical product means a pharmaceutical product that does not contain 66 a chemical entity that has been previously approved in the Party. 64 Drafters ' note: The Parties understand that Article QQ.A.5 ap plies to the provisions of this Chapter, including the definition of ''biotechnology process '' in this paragraph. Accordingly, the Parties underst and that each Party may determine the meaning of biotec hnology processes in its legal system and practice. 65 Negotiators ' Note to legal scrub: please determine proper placemen t of this definition. 66 For the purposes of this Article, a Party may treat ''contain'' as meaning utilize.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 27 Article QQ.E.22: {} Subject to Article QQ.E.16.3 (pr otection of public hea lth), when a product is subject to a system of marketing approval in the territory of a Party pursuant to Articles QQ.E.16, QQ.E.20, or QQ.E.13 (a gr icultur a l chemica l pr oducts) and is also covered by a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to Articles QQ.E.16, QQ.E.20, or QQ.E.13 (a gr icultur a l chemica l pr oducts) in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in Articles QQ.E.16, QQ.E.20, or QQ.E.13 (a gr icultur a l chemica l pr oducts ). Section F: Industrial Designs Article QQ.F.1: {Industrial Designs} 1. Each Party shall ensure adequate and effective protection of industrial designs and also confirms that protection for industrial designs is available for designs: (a) embodied in a part of an article, or alternatively; (b) having a particular regard, where appropriate, to a part of an article in the context of the article as a whole. 2. This Article is subject to Articles 25 and 26 of the TRIPS Agreement. Article QQ.F.2: {} The Parties recognize the importance of improving quality and efficie ncy in their industrial design registration systems, as well as facilitating the proce ss of cross border acquisition of rights thereof including giving due consideration to ratifying or acce ding to Hague Agreement Concerning the International Registration of Industrial Designs (1999).
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 28 {Section G: Copyright and Related Rights} Article QQ.G.1: {Right of Reproduction} Each Party shall provide67 that authors, performers, and producers of phonograms 68 have the right 69 to authorize or prohibit all reproductions of their works, performances 70, and phonograms in any manner or form, including in electronic form. Article QQ.G.2: {Right of Communication to the Public} Without prejudice to Articles 11(1)(ii), 11 bis(1)(i) and (ii), 11 ter(1)(ii), 14(1)(ii), and 14 bis (1) of the Berne Convention, each Party shall provide to authors the exclus ive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in s uch a way that members of the public may access these works from a place and at a time individually chosen by them 71. Article QQ.G.4: {Right of Distribution} Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copi es72 of their works, performances, and phonograms through sale or other transfer of ownership. Article QQ.G.5: {No Hierarchy} Each Party shall provide that in cases where authorization is neede d from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required. Likewise, each Party shall provide that in cases where authorization is needed from both the author of a work 67 The Parties reaffirm that it is a matter for each Party's law to prescribe that works in general or a ny specified categories of works, performances and phonograms sh all not be protected by copyright or related rights unless they have been fixed in some material form. 68 References to ''authors, performers, and producers of phonograms'' refer also to any successors in interest. 69 With respect to copyrights and related rights in t his Chapter, the ''right to authorize or prohibit'' and the ''right to authorize '' refer to exclusive rights. 70 With respect to this Chapter, a ''performance '' means a performance fixed in a phonogram unless oth erwise specified. 71 It is understood that the mere provision of physic al facilities for enabling or making a communicatio n does not in itself amount to communication within the me aning of this Chapter or the Berne Convention. It is further understood that nothing in this Article pre cludes a Party from applying Article 11bis(2) of the Berne Convention. 72 The expressions ''copies '' and ''original and copies '' subject to the right of distribution in this paragr aph refer exclusively to fixed copies that can be put int o circulation as tangible objects.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 29 embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required. Article QQ.G.14: {Related Rights} 1. Each Party shall accord the rights provided for in this Chapter with re spect to performers and producers of phonograms to the performers and producers of phonograms who are nationals73 of another Party and to performances or phonograms first published or first fixed in the territory of another Party 74 . A performance or phonogram shall be considered first published in the territory of a Party in which it is publ ished within 30 days of its original publication 75. 2. Each Party shall provide to performers the right to authorize or prohibit: (a) broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and (b) fixation of their unfixed performances. 3. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means 7677, and the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them. (b) Notwithstanding subparagraph (a) and Article (QQ.G.16 )(limitations and exceptions ), the application of this right to analog transmissions and non- 73 For the purposes of determining points of attachmen t under this Article, with respect to performers, a Party may treat ''nationals '' as those who would meet the criteria for eligibility under the WPPT Article 3. 74 For greater certainty, in this paragraph with respe ct to performances or phonograms first published or first fixed in the territory of a Party, a Party may appl y the criterion of publication, or alternatively, the criterion of fixation, or both. For greater certainty, consi stent with QQ.A.9, it is understood that Parties sh all accord to performances and phonograms first published or f irst fixed in the territory of another Party, treatment no less favourable than it accords to performances or phonograms first published or first fixed in its own territory. 75 For purposes of this Article, fixation means the fi nalization of the master tape or its equivalent. 76 With respect to broadcasting and communication to t he public, a Party may satisfy the obligation by applying Article 15(1) and 15(4) of the WPPT and ma y also apply Article 15(2) of the WPPT, as long as it is done in a manner consistent with that Party's oblig ations under Article QQ.A.9 (National Treatment). 77 For greater certainty, the obligation under Article QQ.G.14.3 does not include broadcasting or communication to the public, by wire or wireless me ans, of the sounds or representations of sounds fixed in a phonogram that are incorporated in a cinematograp hic or other audio-visual work.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 30 interactive, free over-the-air broadcasts, and exceptions or limitations to this right for such activities, shall be a matter of each Party's law78 . Article QQ.G.15: {Definitions} For purposes of this (Article QQ.G.1 and Article QQ.G.3''18 - articles to be verified on scrub ), the following definitions apply with respect to performers and producers of phonograms: (a) ''broadcasting'' means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also ''broadcasting''; transmission of encrypted signals is ''broadcasting'' where the means for decrypt ing are provided to the public by the broadcasting organization or with its consent; (b) ''communication to the public '' of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram; (c) ''fixation '' means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device; (d) ''performers '' means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perfo rm literary or artistic works or expressions of folklore; (e) ''phonogram '' means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work; (f) ''producer of a phonogram '' means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and (g) ''publication of a performance or a phonogram'' means the offering of copies of the performance or the phonogram to the public, with the consent of the 78 For the purposes of subparagraph (b), it is unders tood that a Party may provide for the retransmissio n of non-interactive, free over-the-air broadcasts, prov ided that such retransmissions are lawfully permitt ed by that Party's government communications authority; a ny entity engaging in such retransmissions complies with the relevant rules, orders or regulations of tha t authority; and such retransmissions do not include those delivered and accessed over the Internet. For great er certainty, this footnote does not limit a Party's ability to avail itself of subparagraph (b).
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 31 right holder, and provided that copies are offered to the public in reasonable quantity. Article QQ.G.6: {Term of Protection for Copyright and Related Rights} Each Party shall provide that, where the term of protection of a work (i ncluding a photographic work), performance, or phonogram is to be calculated79 : (a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author's death 80; and (b) on a basis other than the life of a natural person, the term shall be: (i) not less than 70 years from the end of the calendar year of the first authorized publication 81 of the work, performance, or phonogram; or (ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram 82. Article QQ.G.8: {Application of Berne Article 18 and Article 14.6 of the TRIPS Agreement} Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (Berne Convention) and Article 14.6 of the TRIPS Agreeme nt, mutatis mutandis , to works, performances and phonograms, and the rights in and protections afforded to that subject matter as required by Section G. Article QQ.G.16 : {Limitations and Exceptions} (a) With respect to Section G, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict w ith a normal 79 For greater certainty, in implementing QQ.G.6, not hing prevents a Party from promoting certainty for the legitimate use and exploitation of works, performan ces and phonograms during their terms of protection , consistent with QQ.G.16 and that Party's internatio nal obligations. 80 The Parties understand that if a Party provides it s nationals a term of copyright protection that exc eeds life of the author plus 70 years, nothing in this Article or Article QQ.A.9 sh all preclude that Party from applying Article 7.8 of the Berne Convention with respect to the term in excess of the term provided in QQ.G.6( a) of protection for works of another Party. 81 For greater certainty, for the purposes of Article QQ.G.6 (b)(i) and (ii), where a Party's law provid es for the calculation of term from fixation rather than f rom the first authorized publication, that Party ma y continue to calculate term from fixation. 82 For greater certainty, a Party may calculate a ter m of protection for an anonymous or pseudonymous wo rk or a work of joint authorship in accordance with Ar ticle 7(3) or 7bis of the Berne Convention, provided that the Party implements the corresponding numerical te rm of protection required under Article QQ.G.6.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 32 exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder. (b) Article QQ.G.16(a) neither reduces nor extends the scope of applicabili ty of the limitations and exceptions permitted by the TRIPS Agreement, t he Berne Convention, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. Article QQ.G.17: {Appropriate Balance in Copyright and Related Rights Systems} Each Party shall endeavor to achieve an appropriate balance in its cop yright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment ; news reporting; teaching, scholarship, research, and other similar purposes; and facilitati ng access to published works for persons who are blind, visually impaired, or otherwise print di sabled83, 84 . Article QQ.G.9: {Contractual Transfers} Each Party shall provide that for copyright and related rights, any pe rson acquiring or holding any economic right 85 in a work, performance, or phonogram: (a) may freely and separately transfer that right by contract; and (b) by virtue of a contract, including contracts of employment underlying t he creation of works, performances, and phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits de rived from that right 86. 83 As recognized by the Marrakesh Treaty to Facilitat e Access to Published Works for Persons Who Are Bli nd, Vi sually Impaired, or Otherwise Print Disabled (June 27, 2013). The Parties recognize that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements o f the Marrakesh Treaty. 84 For purposes of greater clarity, a use that has co mmercial aspects may in appropriate circumstances b e considered to have a legitimate purpose under Artic le QQ.G.16.3. 85 For greater certainty, this provision does not affec t the exercise of moral rights. 86 Nothing in this Article affects a Party's ability to establish: (i) which specific contracts underlyi ng the creation of works, performances or phonograms shall , in the absence of a written agreement, result in a transfer of economic rights by operation of law; an d (ii) reasonable limits to protect the interests of the original rights holders, taking into account the leg itimate interests of the transferees.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 33 Article QQ.G.10: {Technological Protection Measures}87 (a) In order to provide adequate legal protection and effective legal reme dies against the circumvention of effective technological measures that aut hors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who: (i) knowingly, or having reasonable grounds to know 88 , circumvents without authority any effective technological measure that controls access to a protected work 89, performance, or phonogram 90; or (ii) manufactures, imports, distributes 91 , offers for sale or rental to the public, or otherwise provides devices, products, or components, or offers to the public or provides services, that: (A) are promoted, advertised, or otherwise marketed by that person 92 for the purpose of circumventing any effective technological measure; (B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure 93; or (C) are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure, 87 Nothing in this Agreement shall require any Party to restrict the importation or domestic sale of a device that does not render effective a technological meas ure the sole purpose of which is to control market segmentation for legitimate physical copies of cinem atographic film, and is not otherwise a violation of law. 88 A Party may provide that reasonable grounds to know may be demonstrated through reasonable evidence, taking into account the facts and circumstances surr ounding the alleged illegal act. 89 For greater certainty, in this Chapter, cinematogr aphic works and computer programs are included in t he term ''work.'' 90 For greater certainty, no Party is required to imp ose civil or criminal liability under subparagraph (a)(i) for a person who circumvents any effective technologica l measure that protects any of the exclusive rights of copyright or related rights in a protected work, pe rformance or phonogram, but that does not control a ccess to such work, performance or phonogram. 91 A Party may provide that the obligations described in paragraph (ii) with respect to manufacturing, importation, and distribution apply only where such activities are undertaken for sale or rental, or where such activities prejudice the interests of the right hold er of the copyright or related right. 92 It is understood that this provision still applies where the person promotes, advertises, or markets t hrough the services of a third party. 93 A Party may comply with this paragraph if the cond uct referred to in (ii) does not have a commercially significant purpose or use other than to circumvent a ny effective technological measure.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 34 shall be liable and subject to the remedies set out in Article QQ.H.4.17(Civil Judicial Proceedings relating to TPMs and RMIs). Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged wilfully94 and for the purposes of commercial advantage or financial gain 95 in any of the above activities 96. Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity. A Party may also provide that the remedies set out in Article QQ.H.4.17 (Civil Judicial Proceedings relating to TPMs and RMIs) do not apply to those same entities provide d that the above activities are carried out in good faith without knowled ge that the conduct is prohibited. (b) In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a). (c) Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party's law on copyright and related rights 97. (d) (i) Each Party may provid e certain exceptions and limitations to the measures implementing subparagraphs (a)(i); and (ii) in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party's law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable t he 94 For greater certainty, for purposes of Articles QQ .G.10 and QQ.G.13, it is understood that willfulnes s contains a knowledge element. 95 For greater certainty, for purposes of Articles QQ .G.10, QQ.G.13 and QQ.H.7.1, it is understood that a Party may treat ''financial gain '' as '' commercial purposes in its law. 96 For purposes of greater certainty, no Party is req uired to impose liability under Articles (QQ.G.10 ( TPMs)) and (QQ.G.13 (RMIs)) for actions taken by that Part y or a third party acting with the authorization or consent of that Party. 97 For greater certainty, a Party is not required to t reat the criminal act of circumvention set forth in subparagraph (a)(i) as an independent violation, wh ere the Party criminally penalizes such acts through other means.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 35 beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party's law98 . (e) Any exceptions and limitations to the measures implementing subparag raph (a)(ii) shall be permitted solely to enable the legitimate use of an except ion or limitation permissible under Article QQ.G.10 (TPMs) by its intend ed beneficiaries 99 and shall not authorize the making available of devices, products, components, or services beyond such intended beneficiaries 100. (f) By providing exceptions and limitations under paragraph d(i) and (ii) a Party shall not undermine the adequacy of that Party's legal syst em for the protection of effective technological measures, or the effectiveness of legal remedies against the circumvention of such measures, that authors, performers, or producers of phonograms use in connection with the exercise of their rights, or that restrict unauthorized acts in respect of their wor ks, performances or phonograms, as provided for in this Chapter. (g) ''Effective technological measure '' means any effective 101 technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects copyright or related rights related to a work, performance or phonogram. Article QQ.G.13: {Rights Management Information} In order to provide adequate and effective legal remedies to protect rig hts management information 102: (a) each Party shall provide that any person who without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of the copyright or relat ed right of authors, performers, or producers of phonograms: 98 For greater certainty, nothing in this provision re quires Parties to make a new determination via the legislative, regulatory, or administrative process with respect to exceptions and limitations to the l egal protection of effective technological measures: i) previously established pursuant to trade agreements in force between Parties; or ii) previously implemented by t he Parties, provided that such exceptions and limitations are otherwise consistent with Article QQ.G.10(d). 99 For greater certainty, a Party may provide an exce ption to a(ii) without providing a corresponding exc eption to a(i), provided that the exception to a(ii) is li mited to enabling a legitimate use that is within t he scope of exceptions or limitations to a(i) as provided under d(i). 100 For the purposes of interpreting subparagraph d(ii ) only, subparagraph a(i) should be read to apply to all effective technological measures as defined in parag raph (e), mutatis mutandis . 101 For greater certainty, it is understood that a tech nological measure that can, in a usual case, be circumvented accidentally is not an "effective" tech nological measure. 102 Each Party may comply with the obligations in this Article by providing legal protection only to electronic rights management information.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 36 (i) knowingly103 removes or alters any rights management information; (ii) knowingly distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority 104; or (iii) knowingly distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority, shall be liable and subject to the remedies set out in (Article QQ.H.4(17) (TPMs/RMI civil remedies).) Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the above activities. Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity 105. (b) For greater certainty, nothing prevents a Party from excluding lawfully authorized activities carried out for the purpose of law enforcement, essential security interests, or other related governmental purposes, such as performance of statutory functions, from measures implementing subparagraph (a). (c) ''Rights management information '' means: (i) information that identifies a work, performance, or phonogram, the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogra m; (ii) information about the terms and conditions of the use of the work, performance, or phonogram; or (iii) any numbers or codes that represent such information, 103 Each Party may extend the protections afforded by this paragraph to circumstances in which a person engages without knowledge in the acts in subparagrap h (i), (ii), and (iii), and to other related rights holders. 104 A Party may comply with its obligations under this subparagraph by providing for civil judicial proceedings concerning the enforcement of moral rig hts under the Party's copyright law. A Party may also meet its obligation under paragraph (a)(ii), where i t provides effective protection for original compilations, provided that the acts described in paragraph (a)(i i) are treated as infringements of copyright in such original compilations. 105 For greater certainty, a Party may treat a broadcas ting entity established without a profit -making pur pose under its law as a public non-commercial broadcasti ng entity.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 37 when any of these items of information is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance or phonogram, to the public. (d) For greater certainty, nothing in this Article shall obligate a Part y to require the owner of any right in the work, performance, or phonogram to attach rights management information to copies of the work, performance, or phonogram, or to cause rights management information to appear in connection with a communication of the work, performance, or phonogram to the public. Article QQ.G.18: {Collective Management} The Parties recognize the important role of collective management soc ieties for copyright and related rights in collecting and distributing royalties106 based on practices that are fair, efficient, transparent and accountable, and which may include appropriate re cord keeping and reporting mechanisms. {Section H: Enforcement} Article QQ.H.1: {General Enforcement} 1. Each Party shall ensure that enforcement procedures as specified in t his section, are available under its law 107 so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creat ion of barriers to legitimate trade and to provide for safeguards against their abuse 108. 2. Each Party confirms that the enforcement procedures set forth in Art icles {QQ.H.4 and QQ.H.5 (civil and provisional measures) and QQ.H.7 (criminal measures)} s hall be available to the same extent with respect to acts of trademark, cop yright or related rights infringement in the digital environment. 3. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights shall be fair and equitable. These procedure s shall not be unnecessarily complicated or costly, or entail unreasonable time-limi ts or unwarranted delays. 4. This Section does not create any obligation: 106 For greater certainty, royalties may include equit able remuneration. 107 For greater certainty, ''law '' is not limited to legislation. 108 For greater certainty, each Party confirms that it makes such remedies available, subject to TRIPS Artic le 44 and the provisions of this Agreement, with respec t to enterprises, regardless of whether the enterprises are private or state-owned.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 38 (a) to put in place a judicial system for the enforcement of intellectua l property rights distinct from that for the enforcement of law in general, nor does i t affect the capacity of each Party to enforce their law in general; or (b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general. 5. In implementing the provisions of this Section in its intellectual prope rty system, each Party shall take into account the need for proportionality between t he seriousness of the intellectual property infringement, and the applicable remedies a nd penalties, as well as the interests of third parties. Article QQ.H.2: {Presumptions} 1. In civil, criminal, and if applicable, administrative proceedings involving copyright or related rights, each Party shall provide: (a) for a presumption109 that, in the absence of proof to the contrary, the person whose name is indicated in the usual manner 110 as the author, performer, producer of the work, performance, or phonogram, or as applicable, the publisher is the designated right holder in such work, performance, or phonogram; and (b) for a presumption that, in the absence of proof to the contrary, the copy right or related right subsists in such subject matter. 2. In connection with the commencement of a civil, administrative or crimina l enforcement proceeding involving a registered trademark that has been substa ntively examined by the competent authority, each Party shall provide that suc h a trademark be considered prima facie valid. 3. In connection with the commencement of a civil or administrative enfor cement proceeding involving a patent that has been substantively examined and gr anted111 by the competent authority, each Party shall provide that each claim in the pa tent be considered 109 For greater certainty, a Party may implement this Article on the basis of sworn statements or documen ts having evidentiary value, such as statutory declara tions. A Party may also provide that such presumpti ons are rebuttable presumptions that may be rebutted by evi dence to the contrary. 110 Each Party may establish the means by which it sha ll determine what co nstitutes the ''usual manner'' for a particular physical support. 111 For greater certainty, nothing prevents a Party fr om making available third party procedures in conne ction with its fulfilment of Paragraphs 2 and 3.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 39 prima facie to satisfy the applicable criteria of patentability in the terri tory of the Party112 ,113. Article QQ.H.3 : {Enforcement Practices With Respect to Intellectual Property Rights} 1. Each Party shall provide that final judicial decisions and administrat ive rulings of general application pertaining to the enforcement of intellectual p roperty rights shall preferably be in writing and state any relevant findings of fact and the r easoning or the legal basis on which the decisions and rulings are based. Each Party sha ll also provide that such decisions and rulings shall be published 114 or, where publication is not practicable, otherwise made available to the public, in a national language i n such a manner as to enable interested persons and Parties to become acquainted with them. 2. Each Party recognizes the importance of collecting and analyzing statistical data and other relevant information concerning intellectual property rights infrin gements as well as collecting information on best practices to prevent and combat infringements. 3. Each Party shall publish or otherwise make available to the public inform ation on its efforts to provide effective enforcement of intellectual property right s in its civil, administrative and criminal systems, such as statistical informat ion that the Party may collect for such purposes. Article QQ.H.4: {Civil and Administrative Procedures and Remedies} 1. Each Party shall make available to rights holders 115 civil judicial procedures concerning the enforcement of any intellectual property right covered in this Chapter. 112 For greater certainty, where a Party provides its administrative authorities with the exclusive autho rity to determine the validity of a registered trademark or patent, nothing in paragraphs 2 and 3 shall prevent that Party's competent authority from suspending the enf orcement procedures until the validity of the registered trademark or patent is determined by the administra tive authority. In such validity procedures, the party challenging the validity of the registered trademar k or patent shall be required to prove that the registered trademark or patent is not valid. Notwithstanding t he foregoing sentence, a Party may require the trad emark holder to provide evidence of first use. 113 A Party may provide that this provision applies on ly to those patents that have been applied for, examined and granted after the entry into force of this Agre ement. 114 A Party may satisfy the requirement for publicatio n by making the decision or ruling available to the public on the Internet. 115 For the purposes of this Article, the term ''right h older'' shall include those authorized licensees, federations and associations that have the legal st anding and authority to assert such rights. The ter m ''authorized licensee '' shall include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 40 2. Each Party shall provide116 that in civil judicial proceedings its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of a n infringement of that person's intellectual property right by an infringer who knowingly, or w ith reasonable grounds to know, engaged in infringing activity. 3. At least in cases of copyright or related rights infringement and tra demark counterfeiting, each Party shall provide that, in civil judicial proceedin gs, its judicial authorities have the authority to order the infringer, at least as described in paragraph 2, to pay the right holder the infringer's profits that are attributable to the infringement 117. 4. In determining the amount of damages under paragraph 2, its judicial aut horities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price. 5. Each Party shall provide that its judicial authorities have the authorit y to order injunctive relief that conforms to the provisions of Article 44 of the TRIPS Agreement, inter alia, to prevent goods that involve the infringement of an intellectual property rig ht under the law of the Party providing such relief from entering into the cha nnels of commerce. 6. Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcem ent procedures with regard to intellectual property rights including trademarks, geographic al indications, patents, copyright and related rights, and industrial designs, to provide the pa rty wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the a pplicant to pay the defendant expenses, which may include appropriate attorney's fees. 7. In civil judicial proceedings, with respect to infringement of copyright or related rights protecting works, phonograms, and performances, each Party shall e stablish or maintain a system that provides for one or more of the following: (a) pre-established damages, which shall be available upon the election of t he right holder; or (b) additional damages 118. 8. In civil judicial proceedings, with respect to trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following: 116 A Party may also provide that the right holder may not be entitled to any of the remedies set out in 2, 3 and 8 in the case of a finding of non-use of a trad emark. It is understood that there is no obligation for a Party to provide for the possibility of any of the remedi es in 2, 3, 7 and 8 to be ordered in parallel. 117 A Party may comply with this paragraph through pre suming those profits to be the dama ges referred to in paragraph 2. 118 For greater certainty, additional damages may incl ude exemplary or punitive damages.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 41 (a) pre-established damages, which shall be available upon the election of t he right holder; or (b) additional damages119. 9. Pre-established damages under paragraphs (7) and (8) shall be set out in a n amount that would be sufficient to compensate the right holder for the harm caused b y the infringement, and with a view to deterring future infringements. 10. In awarding additional damages under paragraphs (7) and (8), judicial authori ties shall have the authority to award such additional damages as they cons ider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future. 11 . Each Party shall provide that its judicial authorities, where appropriat e, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, patents, and trademarks, tha t the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney´s fees, or any other expenses as provided for under that Party´s law. 12. Each Party shall provide that in civil judicial proceedings: (a) At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that, in civil judicial proceedings, at the right holder's request, its judicial authorities have the authority to or der that such infringing goods be destroyed, except in exceptional circumstances, without compensation of any sort. (b) Each Party shall further provide that its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. (c) In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional circumstances, to permit the release of goods into the cha nnels of commerce. 13. Without prejudice to its law governing privilege, the protection of confidentia lity of information sources, or the processing of personal data, each Party shall provi de that, in civil judicial proceedings concerning the enforcement of intellectual prope rty rights, its judicial authorities have the authority, upon a justified request of the rig ht holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or t o the judicial authorities, at least for the purpose of collecting evidenc e, relevant information 119 For greater certainty, additional damages may incl ude exemplary or punitive damages.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 42 as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding a ny person involved in any aspect of the infringement or alleged infringement and rega rding the means of production or the channels of distribution of the infringing or allegedly infr inging goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution. 14. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of intellectual property rights, its judicial or other authori ties have the authority to impose sanctions on a party, counsel, experts, or other persons subje ct to the court's jurisdiction, for violation of judicial orders concerning the protection of confidential information produced or exchanged in that proceeding. 15. To the extent that any civil remedy can be ordered as a result of a dministrative procedures on the merits of a case, each Party shall provide that such proc edures conform to principles equivalent in substance to those set out in this Article (civil and administrative proceedings). 16. In the event that a Party's judicial or other authorities appoint techni cal or other experts in civil proceedings concerning the enforcement of intellectual prope rty rights and require that the parties to the litigation bear the costs of such experts , that Party should seek to ensure that such costs are reasonable and related appropriately, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings. 17. In civil judicial proceedings concerning the acts described in Articl e QQ.G.10 (TPMs) and Article QQ.G.12 (RMI), each Party shall provide that its judic ial authorities shall, at least, have the authority to120 : (a) impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity; (b) order the type of damages available for copyright infringement, as provided under its regime in accordance with Article QQ.H.4 121; (c) order court costs, fees, or expenses as provided for under Article QQ.H.4.11; and (d) order the destruction of devices and products found to be involved in the prohibited activity. A Party may provide that damages shall not be available against a nonprofit library, archives, educational institution, museum, or public noncommercial broadcasti ng entity 120 For greater certainty, a Party may, but is not req uired to, put in place separate remedies in respect of Article QQ.G.10 (TPMs) and Article QQ.G.12 (RMI), if such r emedies are available under its copyright law. 121 Where a Party's copyright regime provides for both pre-established damages and additional damages, it may comply with the requirements of this subparagra ph by providing for only one of these forms of damages.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 43 that sustains the burden of proving that such entity was not aware or had no reason to believe that its acts constituted a prohibited activity. Article QQ.H.5 : {Provisional Measures} 1. Each Party's authorities shall act on requests for relief in respect of any intellectual property right inaudita altera parte expeditiously in accordance with the Party's judicial rules. 2. Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures in respect of an y intellectual property right, to provide any reasonably available evidence in order to satisfy t hemselves with a sufficient degree of certainty that the applicant's right is being infr inged or that such infringement is imminent, and to order the applicant to provide a security or equi valent assurance set at a level sufficient to protect the defendant and to preven t abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedure s. 3. In civil judicial proceedings concerning copyright or related rights infri ngement and trademark counterfeiting, each Party shall provide that its judic ial authorities shall have the authority to order the seizure or other taking into custody of suspect ed infringing goods, materials and implements relevant to the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement. Article QQ.H.6: {Special Requirements related to Border Measures}122 1. Each Party shall provide for applications to suspend the release of, or to detain, any suspect counterfeit or confusingly similar trademark, or pirated copyright goods that are imported 123 into the territory of the Party. 4. Each Party shall provide that any right holder initiating procedures for its competent authorities 124 to suspend release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods 125 into free circulation is required to provide adequate 122 Drafter's note: The Parties understand that there shall be no obligation to apply the procedures set forth in this Article to goods put on the market in anothe r country by or with the consent of the right holder. 123 Drafter's note: The Parties understand that a Part y may treat ''in transit'' as distinct from ''imported.'' 124 For the purposes of this Article QQ.H.6 (Border Mea sures), unless otherwise specified, competent authorities may include the appropriate judicial, a dministrative, or law enforcement authorities under a Party's law. 125 For purposes of Article QQ.H.6: (a) counterfeit trademark goods means any goods, in cluding packaging, bearing without authorization a trademark that is identical to the trademark validl y registered in respect of such goods, or that canno t be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the la w of the Party providing the procedures under this section; and
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 44 evidence to satisfy the competent authorities that under the law of the Party providing the procedures there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspected goods reasonably recogniza ble by its competent authorities. The requirement to provide such information shall not unre asonably deter recourse to these procedures. 5. Each Party shall provide that its competent authorities have the authorit y to require a right holder initiating procedures to suspend the release of suspected counte rfeit or confusingly similar trademark goods, or pirated copyright goods, to provide a rea sonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such securit y or equivalent assurance shall not unreasonably deter recourse to these procedures. A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good. 6. Without prejudice to a Party's laws pertaining to privacy or the confident iality of information, where its competent authorities have detained or suspended the rel ease of goods that are suspected of being counterfeit trademark goods or pirated cop yright goods, a Party may provide that its competent authorities have the authority t o inform the right holder without undue delay of the names and addresses of the consignor, exporte r, consignee, or importer, a description of the goods, quantity of the goods, and, if known, the country of origin of the goods126 . Where a Party does not provide such authority to its competent authorities when suspect goods are detained or suspended from releas e, it shall provide at least in cases of imported goods, its competent authorities with the authority to provide the foregoing information to the right holder normally within 30 days 127 of the seizure or determination that the goods are counterfeit trademark or pi rated copyright goods. 7. Each Party shall provide that its competent authorities may initiate border measures ex officio 128 with respect to goods under customs control 129 that are: (a) imported; (b) pirated copyright goods means any goods that ar e copies made without the consent of the right holde r or person duly authorized by the right holder in th e country of production and that are made directly or indirectly from an article where the making of t hat copy would have constituted an infringement of a copyright or a related right under the law of the Party providing the procedures under this section. 126 For greater certainty, a Party may establish reaso nable procedures to receive or access such informati on. 127 For purposes of this Article, ''days '' shall mean ''business days ''. 128 For greater certainty, the parties understand that ex officio action does not require a formal complaint from a private party or right holder. 129 For purposes of this Article, a Party may treat ''g oods under customs control'' as meaning goods that are subject to a Party's customs procedures.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 45 (b) destined for export130; or (c) in-transit 131,132, and that are suspected of being counterfeit trademark goods, or pirated copyright goods. 8. Each Party shall adopt or maintain a procedure by which its competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article QQ.H.6.(1), QQ.H.6.6(a) and QQ.H.6.6(b)and if applicable QQ.H.6.6(c), whether the suspect goods infringe an intellectual property right 133. Where a Party provides administrative procedures for the determination of an infringem ent, it may also provide its authorities with the authority to impose administrative pe nalties or sanctions, which may include fines or the seizure of the infringing goods, following a determination that the goods are infringing. 9. Each Party shall provide that its competent authorities have the authori ty to order the destruction of goods following a determination that the goods are infri nging. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trade mark goods, the simple removal of the trademark unlawfully affixed shall not be s ufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce. 10. Where a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee, or destruction fee, such fe e shall not be set at an amount that unreasonably deters recourse to these procedures. 11. Each Party shall include in the application of this Article goods of a commercial nature sent in small consignments. A Party may exclude from the appl ication of this Article small quantities of goods of a non-commercial nature contained in traveler s' personal luggage 134. Article QQ.H.7: {Criminal Procedures and Penalties} 130 For purposes of this Article, a party may treat goo ds ''destined for export'' as meaning exported. 131 Subparagraph (c) applies to suspect goods which ar e in-transit from one customs office to another customs office in the Party's territory from which the good s will be exported. 132 As an alternative to QQ.H.6.6(c), a Party shall in stead endeavour to provide, where ap propriate and w ith a view to eliminating international trade in counte rfeit trade mark or pirated copyright goods, available information to another Party in respect of goods th at it has examined without a local consignee which are transhipped through its territory and destined for the territory of the other Party, to inform that other Party's efforts to identify suspect goods upon arrival in it s territory. 133 A Party may comply with the obligation in this Arti cle with respect to a determination that suspect goods under QQ.H.6.6 infringe an intellectual property ri ght through a determination that the suspect goods bear a false trade description. 134 For greater certainty, a Party may also exclude fr om the application of this Article small quantities of goods of a non-commercial nature sent in small consig nments.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 46 1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related ri ghts piracy, ''on a commercial scale'' includes at least: (a) acts carried out for commercial advantage or financial gain; and (b) significant acts, not carried out for commercial advantage or financial gai n, that have a substantial prejudicial impact on the interests of the cop yright or related rights owner in relation to the marketplace135 ,136. 2. Each Party shall treat willful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activit ies subject to criminal penalties 137. 3. Each Party shall provide for criminal procedures and penalties to be appl ied in cases of willful importation 138 and domestic use, in the course of trade and on a commercial scale, of labels or packaging 139: (a) to which a mark has been applied without authorization which is identic al to, or cannot be distinguished from, a trademark registered in its territ ory; and (b) which are intended to be used in the course of trade on goods or in relation to services which are identical to goods or services for which such trademark is registered. 4. Recognizing the need to address the unauthorized copying 140 of a cinematographic work from a performance in a movie theatre that causes significant ha rm to a right holder in the market for that work, and recognizing the need to deter such harm, each Party shall 135 It is understood that a Party may comply with subpar agraph (b) by addressing such signi ficant acts under its criminal procedures and penalties for non-autho rized uses of protected works, performances and phonograms in its domestic law. 136 A Party may provide that the volume and value of a ny infringing items may be taken into account in determining whether the act has a substantial preju dicial impact on the interests of the copyright or related rights owner in relation to the marketplace. 137 For greater certainty, it is understood that a Part y may comply with its obligation under Article QQ.H .7.2 relating to importation and exportation of counterf eit trademark goods or pirated copyright goods by providing that distribution or sale of such goods o n a commercial scale is an unlawful activity subjec t to criminal penalties. Furthermore, each Party confirm s that criminal procedures and penalties as specified in Articles QQ.H.7.1, QQ.H.7.2 and QQ.H.7.3 are applic able in any free trade zones in a Party. 138 A Party may comply with its obligation relating to importation of labels or packaging through its mea sures concerning distribution. 139 A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trade mark offence. 140 For purposes of this Article, a Party may treat the term ''copying'' as synonymous with reproduction.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 47 adopt or maintain measures, which shall at a minimum include but need not be limited to, appropriate criminal procedures and penalties. 5. With respect to the offenses for which this Article requires the Parti es to provide for criminal procedures and penalties, Parties shall ensure that criminal liability for aiding and abetting is available under its law. 6. With respect to the offences described in Article QQ.H.7 (1)-(5) above, e ach Party shall provide: (a) penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corres ponding gravity141 ; (b) that its judicial authorities shall have the authority, when determ ining penalties, to account for the seriousness of the circumstances, which ma y include those that involve threats to, or effects on, health or safety 142; (c) that its judicial or other competent authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offense, documentary evidence relevant to the alleged offense and assets derived from, or obtained through the alleged infringing activity; Where a Party requires the identification of items subject to seizure as a prerequisite for issuing any such judicial order, that Party shall not require the items to be described in greater detail than necessary to ide ntify them for the purpose of seizure; (d) that its judicial authorities shall have the authority to order the forfeiture , at least for serious offenses, of any assets derived from, or obtained through the infringing activit y; (e) that its judicial authorities shall have the authority to order the forfeiture or destruction of (i) all counterfeit trademark goods or pirated copyright goods; and (ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trademark goods; and 141 It is understood that there is no obligation for a Party to provide for the possibility of imprisonme nt and monetary fines to be imposed in parallel. 142 A Party may also account for such circumstances th rough a separate criminal offense.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 48 (iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offense. In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, such goods shall be disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall further provide that forfeiture or destruction under this subparagraph and subparagraph (c) shall occur without compensation of any kind to the defendant; (f) that its judicial or other competent authorities shall have the authority to release or, in the alternative, provide access to, goods, material, impl ements, and other evidence held by the relevant authority to a right holder for civil143 infringement proceedings; (g) that its competent authorities may act upon their own initiative to initiate a legal action without the need for a formal complaint by a private pa rty or right holder 144. 7. With respect to the offences described in Article QQ.H.7 (1)-(5) above, a P arty may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity. Article QQ.H.8 : {Trade Secrets }145,146 1. In the course of ensuring effective protection against unfair competit ion as provided in Article 10 bis of the Paris Convention, each Party shall ensure that natural and legal persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state commerci al enterprises) without their consent in a manner contrary to honest commercial practic es.147 As used in 143 A Party may also provide such authority in connect ion with administrative infringement proceedings. 144 With regard to copyright and related rights piracy provided for by QQ.H.7.1 (Commercial Scale), a Part y may limit application of subparagraph (h) to the ca ses where there is an impact on the right holder 's ability to exploit the work in the market. 145 For greater certainty, this Article is without pre judice to a Party's measures protecting good faith lawful disclosures to provide evidence of a violation of th at Party's law. 146 Drafter's note: The Parties understand that this Ar ticle is without prejudice to a Party's measures in relation to whistleblowing. 147 For the purposes of this paragraph ''a manner contr ary to honest commercial practices'' shall mean at least practices such as breach of contract, breach of conf idence and inducement to breach, and includes the acquisition of undisclosed information by third par ties who knew, or were grossly negligent in failing to know, that such practices were involved in the acqu isition.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 49 this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement. 2. Subject to Paragraph 3, Each Party shall provide for criminal procedures a nd penalties for one or more of the following: (a) the unauthorized, willful access to a trade secret held in a computer sy stem; (b) the unauthorized, willful misappropriation of a trade secret, including b y means of a computer system; or (c) the fraudulent disclosure, or alternatively, the unauthorized and willful disclosure of a trade secret, including by means of a computer system. 3. With respect to the acts referred to in Paragraph 2, a Party may , where appropriate, limit the availability of such criminal procedures, or limit the leve l of penalties available, to one or more of the following cases: (a) the acts are for purposes of commercial advantage or financial gain; (b) the acts are related to a product or service in national or internati onal commerce; (c) the acts are intended to injure the owner of such trade secret; (d) the acts are directed by or for the benefit of or in association with a foreign economic entity; or (e) the acts are detrimental to a Party's economic interests, internat ional relations, or national defense or national security148 . Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite an d Cable Signals} 1. Each Party shall make it a criminal offense to: (a) manufacture, assemble, modify 149, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know 150 that the device or system meets at least one of the following conditions: (i) it is intended to be used to assist, 148A Party may deem the term "misappropriation" to be synonymous with "unlawful acquisition." 149 For greater certainty, a Party may treat "assemble" and "modify" as incorporated in ''manufacture.'' 150 For the purposes of this paragraph, a Party may pro vide that ''having reason to know'' may be demonstrated through reasonable evidence, taking in to account the facts and circumstances surrounding the alleged illegal act, as part of the Party' s ''knowledge '' requirements. A Party may treat "having reason to know" as meaning "wilful negligence."
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 50 (ii) it is primarily of assistance, or (iii) its principal function is solely to assist, in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor151 of such signal 152; and (b) with respect to an encrypted program-carrying satellite signal, willfully : (i) receive 153 such a signal; or (ii) further distribute 154 such signal knowing that it has been decoded without the authorization of the lawful distributor of the signal. 2. Each Party shall provide for civil remedies for any person that holds an i nterest in an encrypted program carrying satellite signal or its content and w ho is injured by any activity described in paragraph 1. 3. Each Party shall provide for criminal penalties or civil remedies 155 for willfully: (a) manufacturing or distributing equipment knowing that the equipment is intended to be used in the unauthorized reception of any encrypted program-carrying cable signal; and (b) receiving, or assisting another to receive 156, an encrypted program-carrying cable signal without authorization of the lawful distributor of the signal. Article QQ.H.11 : {Government Use of Software} 1. Each Party recognizes the importance of promoting the adoption of measures to enhance government awareness of respect for intellectual property rights and of the detrimental effects of intellectual property rights infringement. 151 With regard to the criminal offences and penalties in paragraphs 1 and 3, a Party may require a showi ng of intent to avoid payment to the lawful distributo r or a showing of intent to otherwise secure a pecu niary benefit to which the recipient is not entitled. 152 The obligation regarding export may be met by maki ng it a criminal offence to possess and distribute such a device or system. For the purposes of QQ.H.9, a P arty may provide that a ''lawful distributor'' means a person who has the lawful right in that Party's ter ritory to distribute the encrypted program-carrying signal and authorize its decoding. 153 For greater certainty and for purposes of Article QQ.H.9.1(b) and QQ.H.9.3(b), a Party may provide th at wilful receipt of an encrypted program-carrying sat ellite or cable signal means receipt and use of the signal, or means receipt and decoding of the signal. 154 For greater certainty, a Party may interpret ''furt her distribute'' as ''retransmit to the public.'' 155 If a Party provides for civil remedies, it may requir e a showing of injury. 156 A Party may comply with its obligation in respect o f ''assisting another to receive'' by providing criminal penalties for a person willfully publishing any inf ormation in order to enable or assist another perso n to receive a signal without authorization of the lawful distributor of the signal.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 51 2. Each Party shall adopt or maintain appropriate laws, regulations, policies , orders, government-issued guidelines, or administrative or executive decrees providing that its central government agencies use only non-infringing computer software prot ected by copyright and related rights, and if applicable, only use such computer soft ware in a manner authorized by the relevant license. These measures shall apply to t he acquisition and management of such software for government use157 . Section I: {Internet Service Providers} 1. The Parties recognize the importance of facilitating the continued de velopment of legitimate online services operating as intermediaries and, in a ma nner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permi t effective action by rights holders against copyright infringement 158 covered under this Chapter that occurs in the online environment. Accordingly, each Party shall ensure that legal remedies are available for rights holders to address such infring ement and shall establish or maintain appropriate safe harbors in respect of online service s that are Internet Service Providers 159. This framework of legal remedies and safe harbors shall include: (a) legal incentives 160 for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials; and (b) limitations in its law that have the effect of precluding monetar y relief against Internet Service Providers for copyright infringements that they do not control, initiate, or direct, and that take place through systems or networks controlled or operated by them or on their behalf 161. 2. The limitations described in paragraph 1(b) shall include limitations i n respect of the following functions: 157 For greater certainty, paragraph 2 should not be interpreted as encouraging regional government agencies to use infringing computer software or, if applicable to use computer s oftware in a manner which is not authorized by the relevant license. 158 For the purposes of this Article, ''copyright '' includes related rights. 159 For the purposes of this Section, '' Internet service provider '' means: (a) A provider of online services for the transmission, routing, or providing of connections for digital online communications, between or among points spec ified by a user, of material of the user 's choosing, undertaking the function in paragraph 2(a ); (b) A provider of online services undertaking the funct ions in paragraphs 2(c) or (d). For greater certainty, ''Internet service provider '' includes a provider of the services listed above wh o engages in caching carried out through an automated process. 160 For greater certainty, the Parties understand that implementation of the obligations in subparagraph 1(a) on ''legal incentiv es'' may take different forms. 161 It is understood that, to the extent that a Party d etermines, consistent with its international legal obligations, that a particular act does not constitut e copyright infringement, there is no obligation to p rovide for a limitation in relation to that act.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 52 (a) transmitting, routing, or providing connections for material without modification of its content162, or the intermediate and transient storage of such material done automatically in the course of such a technical process; (b) caching carried out through an automated process; (c) storage 163, at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider 164; and (d) referring or linking users to an online location by using information locat ion tools, including hyperlinks and directories. 3. To facilitate effective action to address infringement, each Party shall prescribe in its law conditions for Internet Service Providers to qualify for the limit ations described in paragraph 1(b), or alternatively, shall provide for circumstances under which Inte rnet Service Providers do not qualify for the limitations described in paragraph 1(b) 165,166: (a) With respect to the functions referred to in paragraph 2(c) and 2(d) above, such conditions shall include a requirement for Internet service providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement 162 Such modification does not include modifications ma de as part of a technical process or for solely technical reasons such as division into packets. 163 For greater certainty, Parties may interpret ''stor age'' as ''hosting ''. 164 For greater certainty, such storage of material ma y include e-mails and their attachments stored in t he Internet Service Provider's server and web pages resi ding on the Internet Service Provider's server. 165 A Party may comply with the obligations in Paragra phs 3, by maintaining a framework wherein: (i) there is a stakeholder organization that includes r epresentatives of both Internet Service Providers and rights holders, established with government invo lvement; (ii) such stakeholder organization develops and maintain s effective, efficient, and timely procedures for entities certified by the stakeholder organizati on to verify without undue delay the validity of each notice of alleged copyright infringement by co nfirming that the notice is not the result of mistake or misidentification, before forwarding suc h verified notice to the relevant Internet Service Provider; and (iii) there are appropriate guidelines for Internet Servi ce Providers to follow in order to: qualify for the limitation described in paragraph 1(b), including r equiring that such Internet Service Provider promptly remove or disable access to the identified materials upon receipt of a verified notice; and be exempted from liability for having done so in go od faith in accordance with such guidelines; and (iv) there are appropriate measures that provide for lia bility where an Internet Service Provider has actual knowledge of the infringement or awareness o f facts or circumstances from which the infringement is apparent. 166 It is understood that Parties that have yet to imp lement the obligations set forth in paragraphs 3 an d 4 will do so in a manner that is both effective and consis tent with that Party's existing constitutional provisions. To that end, a Party may establish an appropriate role for the government that does not impair the timeli ness of the process set forth under paragraphs 3 or 4 or en tail advance government revie w of each individual not ice.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 53 is apparent, such as through receiving a notice167 of alleged infringement from the right holder or a person authorized to act on its behalf, (b) An Internet Service Provider that removes or disables access to material in good faith pursuant to and consistent with sub-paragraph (a) shall be exempt from any liability for having done so, provided that it takes reasonable st eps in advance or promptly after to notify the person whose material is remov ed or disabled 168. 4. Where a system for counter-notices is provided under a Party's law, and w here material has been removed or access has been disabled in accordance w ith paragraph 3, that Party shall require that the Internet Service Provider restore the material subject to a counter-notice, unless the person giving the original notice seeks judici al relief within a reasonable period of time. 5. Each Party shall ensure that monetary remedies are available i n its legal system against any person who makes a knowing material misrepresentation in a notice or counter-notice that causes injury to any interested party 169 as a result of an Internet Service Provider relying on the misrepresentation. 6. Eligibility for the limitations in paragraph 1 may not be conditione d on the Internet Service Provider monitoring its service or affirmatively seeking facts i ndicating infringing activity. 7. Each Party shall provide procedures, whether judicial or administrative, in accordance with that Party's legal system, and consistent with principles of due process and privacy, enabling a copyright owner who has made a legally suffic ient claim of copyright infringement to obtain expeditiously from an Internet Servi ce Provider information in the provider's possession identifying the alleged infringe r, where such information is sought for the purpose of protecting or enforcing such copyright. 8. It is understood that the failure of an Internet Service Provider to qualify for the limitations in paragraph 1 does not itself result in liability. More over, this Article is without prejudice to the availability of other limitations and exceptions to c opyright, or any other defenses under a Party's legal system. 167 For greater certainty, such a notice, as may be se t out under a Party's law, must contain information that is reasonably sufficient to enable the online servi ce provider to identify the work, performance or pho nogram claimed to be infringed, the alleged infringing mat erial, and the online location of the alleged infringement, and that has a sufficient indicia of reliability with respect to the authority of the person sending the notice. 168 With respect to the function in subparagraph 2(b), a Party may limit the requirements of paragraph 3 related to an Internet Service Provider removing or disabling access to infringing material to circumstances in which the service provider becomes aware or rece ives notification that the cached material has been removed or access to it has been disabled at the orig inating site. 169 For greater certainty, it is understood ''any inter ested party'' may be limited to those with a legal interest recognized under that Party's law.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 54 9. The Parties recognize the importance, in implementing their obligations under this Article, of taking into account the impacts on rights holders and Inte rnet Service Providers. {This Section includes Annexes QQ.Annex.1-2170} {Subject to legal scrub, confirmation of cross-references} Section J: {Final Provisions} 1. Except as otherwise provided in QQ.A.10 bis and paragraphs 2-4, each Party shall give effect to the provisions of this Chapter on the date of entry into force of this Agreement for that Party. 2. During the relevant periods set out below, a Party shall not amend an e xisting measure or adopt a new measure that is less consistent with its obli gations under the provisions referenced below for that Party than relevant measures that ar e in effect as of the date of signature of this Agreement. This provision does not affect the rights and obligations of a Party under an international agreement to which it and anothe r Party are party. 3. With respect to works of any Party that avails itself of a tra nsition permitted to it with regard to implementation of Article QQ.G.6 as it relates to the term of copyright protection (transition Party), Japan shall apply at least the term of prot ection available under the transition Party's domestic law for the relevant works during t he transition period and apply Article QQ.A.9.1 with respect to copyright term only when tha t Party fully implements Article QQ.G.6. 4. With regard to obligations subject to a transition period, a Party shall ful ly implement its obligations under the provisions of this Chapter no later than t he expiration of the relevant time period specified below, which begins on the date of entry into force of the Agreement for that Party. (a) In the case of Malaysia: (i) With respect to Article QQ.A.8.2(a)(Madrid) and (d)(STLT), 4 years; (ii) With respect to Article QQ.A.8.2(b)(Budapest), 4 years; (iii) With respect to Article QQ.A.8.2(c)(UPOV91), 4 years; (iv) With respect to sound marks in Article QQ.C.1 (types of signs registrable as trademarks), 3 years; (v) With respect to QQ.H.6 (only with respect to 'confusingly similar ' and 'export'), 4 years; 170 Negotiators ' Note to Legal Scrub: Please help us to create a link between the main text and standards.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 55 (vi) With respect to QQ.H.6.6(b)-(c)(ex officio border enforcement), 4 years; (vii) With respect to QQ.H.9.2 (civil procedures for satellite signals), 4 years; (viii) With respect to QQ.E.17 (patent linkage), 4.5 years; (ix) With respect to QQ.E.20 (biologics), 5 years; (x) With respect to QQ.E.14.2 (patent term adjustment for marketing approval delays), 4.5 years; (xi) With respect to Article G.6(b) (copyright term for author-based works), 2 years. (b) In the case of Mexico: (i) With respect to Article QQ.A.8.2(c)(UPOV91), 4 years; (ii) With respect to Article QQ.E.13 (Agricultural Chemical Products), 5 years; (iii) With respect to Section I (Internet Service Providers), 3 years; (iv) With respect to QQ.E.14.2 (patent term adjustment for unreasonable curtailment), 4.5 years; (v) With respect to QQ.E.20 (Biologics), 5 years; (vi) With respect to QQ.E.16 (pharmaceutical data protection), 5 years. (c) In the case of New Zealand: (i) With respect to Article QQ.G.6, upon entry into force of the Agreement, New Zealand shall provide that the term of protection for a work expires 60 years from the relevant date in Article QQ.G.6(a ) and (b)(i) that is the basis for calculating the term of protection. No later than 8 years after entry into force of this Agreement for New Ze aland, New Zealand shall provide the term of protection for works as set forth in Article QQ.G.6(a) and (b)(i). Further to Article QQ.A.10 bis, New Zealand shall not be required to restore or extend the term of protection to works that have fallen into the public domain in its territory in accordance with this transition period. (d) In the case of Peru: (i) With respect to QQ.E.16.2, five years; (ii) With respect to QQ.E.20, 10 years.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 56 (e) In the case of Viet Nam: (i) With respect to Article QQ.A.8.2(b) (Budapest), 2 years; (ii) With respect to Article QQ.A.8.2(e ) '' (f) (WCT and WPPT), 3 years; (iii) With respect to sound marks in Article QQ.C.1 (Types of Signs Registrable as Trademarks), 3 years; (iv) With respect to Article QQ.E.12.3-4 (PTE for patent office delays), 3 years; (v) With respect to Article QQ.E.13 (ag chem), 5 years; (vi) With respect to Article QQ.E.17 (patent linkage), 3 years; (vii) With respect to Article QQ.E.14.2 (patent term adjustment for marketing approval delays), 5 years; (viii) With respect to QQ.G.6(a) (copyright term for life-based works), 5 years; (ix) With respect to QQ.H.6.6(b) (ex officio border measures for export), 3 years; (x) With respect to QQ.H.6.6(b) (ex officio border measures for in-transit), 2 years; (xi) With respect to QQ.I (ISP liability), 3 years; (xii) With respect to QQ.H.7.6(h) (enforcement without IPR holder request for rights other than copyright), 3 years; (xiii) With respect to QQ.H.7.2 (copyright importation), 3 years; (xiv) With respect to QQ.H.9.1 (criminal remedies for satellite signals), 3 years; (xv) With respect to QQ.H.9.3 (cable signals), 3 years; (xvi) With respect to QQ.H.8.2-3 (criminal remedies for trade secrets), 3 years; (xvii) With respect to QQ.H.7.4 (camcording), 3 years; (xviii) With respect to QQ.G.10 (TPMs criminal), 3 years; (xix) With respect to QQ.G.13 (RMIs criminal), 3 years; (xx) With respect to QQ.H.7.2 (exportation on a commercial scale), 3 years; (xxi) With respect to QQ.H.7.1(b) (definition of commercial scale not carried out for financial gain), 3 years; (xxii) With respect to QQ.E.16 (data protection), 10 years*; (xxiii) With respect to QQ.E.20 (biologics), 10 years*; (xxiv) With respect to Article QQ.E.14.2 (patent term adjustment for office delays for pharmaceutical products), 5 years^; (xxv) With respect to Article QQ.E.14.2 (patent term adjustment for office delays for agricultural chemical products), 5 years^;
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 57 *For those transition periods of 10 years, the Parties will consider up to 2 justified requests from Viet Nam for an extension of the transition period for up to 4 additional years upon each request. ^For transitions for Article QQE.14.2 for pharmaceutical products and agricultural chemical products, the Parties will consider a request from Vietnam for an extension of the transition period for up to one additional year. Parties will give sympathetic consideration to such requests. ANNEX TO IP CHAPTER 1 In order to facilitate the enforcement of copyright on the Internet and to avoid unwarranted market disruption in the online environment, paragraph(s) 3-4 shall not apply t o a Party, provided that, if upon the date of agreement in principle of this Agreement, it continues to: 1. prescribe in its law circumstances under which Internet Service Provi ders do not qualify for the limitations described in paragraph 2; 2. provide statutory secondary liability for copyright infringement where a person, by means of the Internet or another digital network, provides a service primaril y for the purpose of enabling acts of copyright infringement, in relation to prescribe d factors, such as: (a) whether the person marketed or promoted the service as one that could be used to enable acts of copyright infringement; (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement; (c) whether the service has significant uses other than to enable acts of copyright infringement; (d) the person's ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so; (e) any benefits the person received as a result of enabling the acts o f copyright infringement; and (f) the economic viability of the service if it were not used to enable acts of copyright infringement; 3. require Internet Service Providers carrying out the functions referred to in paragraph 2(a) and 2(c) to participate in a system for forwarding notices of alleged infringement, including where material is made available online, and wher e they fail to do so, subjecting them to pre-established monetary damages for that failure; 4. induce Internet Service Providers offering information location tools to remove within a specified period of time any reproductions of material that the y make, and
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 58 communicate to the public, as part of offering the location information tool upon receiving a notice of alleged infringement and after the original material has been removed from the electronic location set out in the notice; and 5. induce Internet Service Providers carrying out the function referred to in pa ragraph 2(c) to remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright in the material . For such Party, in light of, inter alia (ii), paragraph 1(a), ''legal incentives'' shall not mean the conditions for Internet Service Providers to qualify for the limitati ons provided in paragraph 1(b), as set out in paragraph 3. ANNEX TO IP CHAPTER 2 As an alternative to implementing Article QQ.xx (ISP), a Party may implement Article 17.11.23 of the United States '' Chile Free Trade Agreement (''US -Chile FTA '')171 . ANNEX TO IP CHAPTER 3 {UPOV NEW ZEALAND} 1. Notwithstanding the obligations in Article QQ.A.8, and subject to paragra phs 2 through 4 of this Annex, New Zealand shall: (a) accede to the UPOV (1991) Convention within three years of the date of entry into force of this Agreement for New Zealand; or (b) adopt a sui generis plant variety rights system that gives effect to the UPOV (1991) Convention within three years of the date of entry into force of this Agreement for New Zealand. 2. Nothing in paragraph 1 shall preclude the adoption by New Zealand of measure s it deems necessary to protect indigenous plant species in fulfillment of its obligations under the Treaty of Waitangi, provided that such measures are not used as a means of arbitrary or unjustified discrimination against a person of another Party. 3. The consistency of any measures referred to in paragraph 2 with the oblig ations in paragraph 1 shall not be subject to the dispute settlement provisions of this Agreement. 4. The interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute set tlement provisions of this Agreement. Chapter BBB (Dispute Settlement) shall otherwise apply to this Annex. A panel established under BBB.7 (Establishment of a Panel) may be requeste d to determine only whether any measure referred to in paragraph 2 is inconsistent with a Party's rights under this Agreement. 171 Negotiator's note: The language of Article 17.11.2 3 will be included in the Agreement by incorporatio n or thoroughly replicating the language in an annex to the Chapter.
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 59 ANNEX TO IP CHAPTER 5 - BRUNEI 1. Brunei may, for the purpose of granting protection as specified in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1, require an applicant to commence the process of obtaining marketing approval for pharmaceutical products covered under these Articles within 18 months from the date the product is first granted marketing approv al in any country. 2. For greater certainty, the periods of protection referenced in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1 shall begin on the date of marketing approval of the pharmaceutical product in Brunei. ANNEX TO IP CHAPTER 4 -CHILE 1. Nothing in Article QQ.E.16(1)-(2) or Article QQ.E.20 prevents Chile from maintaining or applying the provisions of Article 91 of Chile's Law No. 19.039 on Industrial Property, as in effect on the date of agreement in principle of the TPP Agreement. 2. Notwithstanding Article AA.2, paragraph 1 is without prejudice to any Party' s rights and obligations under an international agreement in effect prior to the date of entry into force of the TPP Agreement for Chile, including any rights and oblig ations under trade agreements between Chile and another Party. ANNEX TO IP CHAPTER 5 - MALAYSIA 1. Malaysia may, for the purpose of granting protection as specified in Arti cles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1, require an applicant to commence the process of obtaining marketing approval for pharmaceutical products covered under these Articles within 18 months from the date the product is first granted marketing approv al in any country. 2. For greater certainty, the periods of protection referenced in Articles 18.E.16.(1), 18.E.16.(2) and 18.E.20.1 shall begin on the date of marketing approval of the pharmaceutical product in Malaysia. ANNEX TO IP CHAPTER '' PERU To the extent that Andean Decision 486, Common Industrial Property Regime, and Andean Decision 689, Adequacy of Certain Articles of Decision 486 , restricts Peru's implementation of its obligations set forth in TPP Article QQ.E.12.3 (Patent Term Adjustments for Patent Office Delays) and Article QQ.E.14.2 (Patent Te rm Adjustment for Unreasonable Curtailment), Peru commits to make its best efforts to obtain a waiver from the Andean Community that allows it to adjust its patent term in a way that is consistent with Article QQ.E.12.3. and QQ.E.14.2 Further, if Peru demonstrates that the Andean Community withheld its request for a waiver despite its best efforts , Peru will continue
This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED TPP Negotiations IP Group Intellectual Property [Rights] Chapter 05 Oct 2015 Without Prejudice 60 ensuring that it does not discriminate with respect to the availability or enjoyment of patent rights based on the field of technology, the place of invention, and whether produ cts are imported or locally produced. Thus, Peru confirms that the treatment of pharm aceutical patents will be no less favorable than treatment of other patents in re spect of the processing and examination of patent applications. ANNEX TO IP CHAPTER '' PERU 1. If Peru relies pursuant to TPP Article QQ.E.16.1(b) on a marketing approva l granted by another Party and grants approval within 6 months of the filing of a complete application for marketing approval filed in Peru, Peru may provide that the prot ection specified in Article QQ.E.16.1(b) and Article QQ.E.20, as applicable, s hall begin with the date of the first marketing approval relied on. Peru shall apply the term of protection established Article 16.10.2(b) of the United States '' Peru Trade Promotion Agreement. 2. Peru may apply the prior paragraph to TPP Article QQ.E.16.2.
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Hundreds of thousands protest in Berlin against EU-US trade deal | Reuters.comVIDEO-
Clemson Dining's "Maximum Mexican" night, has become a student favorite over the last several years, and this year was no different, at first.
Everything was going great. Students were loving the food and festivities. Except for two students, who took to Twitter to voice their displeasure with the school's decision to host such a "#CUlturallyInsensitive" event.
While a few on Twitter were offended, the overwhelming preponderance of students registered absolutely no reaction at all. The one student who did respond to the Twitter complaints wrote, "I'm offended that you're offended. #CUfiestafiasco."
Clemson senior Austin Pendergist told Campus Reformhe felt the post-event uproar was ''ridiculous.''
''This is something that Clemson Dining has done for years without any sort of backlash. People love the cultural nights in the dining halls,'' Pendergist said. ''What's next? Are they going to take away all potato based food as to not offend students from Irish decent? Remove the stir fry station so Asian-American students don't feel as if they are being misrepresented? When does it end?''
The university, however, took a different position. Dr. Doug Hallenbeck, Clemson University's Senior Associate Vice President of Student Affairs apologized for the event's ''flattened cultural view of Mexican culture.''
''It is the mission of University Housing & Dining to create supportive and challenging environments that enrich and nourish lives. We failed to live out our mission yesterday, and we sincerely apologize,'' Hallenbeck said.
Dr. Hallenbeck went on to promise that the university ''will continue to work closely with [its] food service provider to create dining programs that align with Clemson University's core values.''
The university posted similar apologies through the Clemson Dining Services Facebook and Twitter pages. The apologies came after students complained that the Mexican-themed event was offensive.
One student tweeted a picture of cafeteria workers wearing sombreros with the caption ''Our culture isn't a costume and we will not be mocked!''
The event, which Pendergist said consisted of ''a couple balloons, sombreros, and some tacos,'' is one of many culturally themed events put on by the Clemson Dining Services throughout the year. For one such event, the university held an event titled ''Low Country BBQ Bash,'' where students were invited to ''Pick up a plate of mighty fine fixins.''
The university has also previously held St. Patrick's Day-themed events, where students were invited to a dinner of ''cornbeef, fried fish, and Irish grilled cheese.'' Both those events, it seems, were uncontroversial.
''For as long as I've been here, and probably for much longer, Clemson dining has put on certain culinary theme nights, where they decorate the dining halls and serve whatever kind of food. They have Italian night, Mexican night, seafood night, midnight breakfast, all kinds of events,'' Pendergist told Campus Reform.
Pendergist went on to say he ''can't imagine how they're going to react when they discover that Taco Bell is a thing."
UPDATE: Clemson's Senior Vice President for Student Affairs told Campus Reform, "We appreciate and support the goal of Dining to celebrate cuisines of different cultures but we felt that we needed to acknowledge unintended offense. It would have been possible to have the celebration, including d(C)cor, as long as we avoid inaccurate and negative stereotypes. That will be our focus going forward. Clemson University issued an apology to students on Thursday after what appears to be a small group of students were offended by an annual Mexican cuisine event put on by university dining services."
Follow the author of this article on Twitter: @peterjhasson
A viral campaign in which victims of domestic abuse draw a black dot on their hand to reach out for help has closed its main social media page following claims it could do more harm than good.
The Black Dot campaign had come to the attention of millions across the world after being set up through a Facebook page by a domestic abuse survivor in the UK last week.
It had reportedly helped 49 women to leave abusive relationships, but received criticism from some arguing that, if the symbol started to be recognised by perpetrators, it would risk making situations worse for victims.
The Facebook page, which had 40,000 likes, has now been closed.
The aim of the campaign was for family and friends to see the black dot on the hand of a victim and arrange for professional intervention.
The anonymous founder of the campaign told ITV News yesterday: ''For five years I experienced emotional, physical and sexual abuse '' it is the loneliest, scariest place to be.
''I had ample opportunities to seek help but I never did.
''I wish I could have put something on my body so they can start that conversation with me'... That's where the Black Dot idea came from.''
But Sandra Horley, chief executive of domestic violence charity Refuge, said she believed the campaign might be dangerous for some women to take part in.
''We are concerned that the Black Dot campaign has become very public and well-known, so therefore it may be dangerous for some women if they take part,'' Ms Horley said.
''Women who mark themselves with a black dot could unintentionally inform their abusive partner that they are trying to reach out and access support.
''This could have grave consequences '' two women a week are killed in England and Wales by a current or former partner, 70 per cent of domestic homicides occur at the point at which a woman separates from a man.
''Refuge would encourage anyone planning to leave an abusive partner to contact a specialist organisation for support.
"If you are frightened of your partner, or concerned about a friend, please visit www.refuge.org.uk.''
According to the Huffington Post, the founder responded to criticism of her campaign by writing: ''This isn't the solution that will help everyone, if anything it should help people realise what abuse is, how it affects people and how to access help.
''Safety must always come first'... Intervention and support should only be done by professionals.''
A Mig-29 fighter jet similar to those used by RussiaEyewitnesses saw a large explosion in Huraytan, northern Syria, while three fighter jets were hovering above.
One journalist tweeted that three Turkish planes were responding to "mysterious" lock-ons from Mig-29 jets, which are used by Putin's forces.
Express.co.uk has contacted the Turkish government and the Russian military but neither could be reached for comment.
Related articlesGETTY
Russian President Vladimir Putin and Turkish President Tayyip ErdoganIt comes amid heightening tensions between Putin and the West just days after another Russian bomber violated Turkish airspace.
F-16 fighters were scrambled after a MIG-29 twin-engined jet locked radar on Turkish planes near the town of Yayladagi, in Hatay province close to the border with Syria.
Turkish jets then escorted the Soviet-era aircraft back into Syrian airspace.
The incursion followed nearly a week of Russia's devastating bombing campaign in Syria after President Vladimir Putin declared war on Islamic State (ISIS).
Turkey's Prime Minister Ahmet Davutoglu said Russia's entry into the conflict in Syria had escalated the crisis and that Moscow admitted its warplane's violation of Turkey's airspace was a "mistake".
Russia's ambassador in Turkey was also summoned in protest at the provocative action.
Turkish officials have warned Moscow would be held "responsible for any undesired incident" that may occur in the future.
GETTY
Mr Sawers warned of increasing tensions between world superpowersAnd earlier this week former MI6 chief Sir John Sawers warned of a cataclysmic clash between Russia and the US as tensions boil between both superpowers.
It came after Defence Secretary Michael Fallon announced Britain is to station a "small number" of troops in the Baltic states in a further move to deter Russian aggression.
IG
Putin's forces are currently fighting the Islamic State in SyriaEPA
Russia said it has hit 110 ISIS targets in just over a weekMr Sawer said: "It is going to be quite hard to continue this campaign unless there is a degree of military co-ordination between the Russians and the West.
"You can't really have two air forces fighting different campaigns aimed at different objectives over the same territory without the real risk of a clash."
(hmmm. Can you say ''motive for new USS Liberty event''? Go ahead. Try it. It rolls right off the tongue. Can you say ''hey. Let's paint some planes. What does a Syrian fighter jet look like again''?)
from Sputnik International
Israeli oil prospectors have discovered a large oil deposit in the Golan Heights, a Syrian territory which it has occupied since 1967.
Israeli oil prospectors discovered a large oil deposit which could make the country self-sufficient in energy, Israeli business daily Globes reported.The oil deposit lies in the Golan Heights, which is internationally recognized as Syrian territory but has been occupied by Israel since the 1967 war between Israel and Arab states. Israel is unable to import oil from nearby Arab oil-exporting countries, which do not recognize Israel and have no diplomatic relations with the country.
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US-Israeli theft of Syrian property - This is why US-Israel helping al-Qaeda to destroy Syria
"A company drilling for oil on the Golan Heights claims to have found ''significant amounts'' in the plateau. ''We're talking about a layer 350 meters thick,'' Yuval Bartov, chief geologist of Afek Oil and Gas, a subsidiary of the American company Genie Energy, told Channel 2."
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Major oil reserve said found on Golan | The Times of Israel
A company drilling for oil on the Golan Heights claims to have found ''significant amounts'' in the plateau.
''We're talking about a layer 350 meters thick,'' Yuval Bartov, chief geologist of Afek Oil and Gas, a subsidiary of the American company Genie Energy, told Channel 2.
The layer is ten times larger than the average oil find worldwide, Bartov said, ''and that's why we're talking about significant amounts. What's important is to know that there's oil in the rock, and this we know.''
Three drilling sites on the Golan have uncovered what is potentially billions of barrels of oil, enough to fulfill the Israeli market's 270,000-barrel-per-day consumption for a very long time, the report claimed.
Exploratory drilling began in December 2014. In recent weeks, Afek requested permission to drill an additional 10 wells.
While it says the oil find is confirmed, the firm says the quality, more precise measures of quantity and cost-effectiveness of extracting the oil won't be known until the extraction is begun.
Afek has faced numerous challenges from environmental groups concerned about the impact of drilling, some of which reached the High Court of Justice.
Since Israel's founding, companies searching for oil across Israel have drilled 530 exploratory wells, and none of them has turned up commercially viable oil, Genie CEO Geoff Rochwarger said in September.
''It seems to me that [such actions] are unworthy of an open, democratic society,'' he said in the RTL press release.
Three Dutch media companies have filed a joint lawsuit against the country's Security and Justice Ministry, demanding that it disclose more documents relating to the MH17 catastrophe investigation after the ministry's refusal to release the information.
The Netherlands Broadcasting Foundation (NOS); the Dutch subsidiary of the European TV, radio and production company RTL Group; and the Dutch daily Volkskrant have joined forces to appeal the Netherlands Security and Justice Ministry's refusal to make public ''many documents'' concerning the Malaysian Airlines MH17 crash in Eastern Ukraine last year, NOS said in a press release.
The three media companies had previously appealed to the ministry separately, asking it to disclose MH17 investigation data based on the Freedom of Information Law (WOB). The aim of the companies was to bring to light the details of the tragedy, as well as to reconstruct the actions of Dutch officials after the catastrophe.
Where are the survivors? The unseemly efforts undertaken by the Obama administration, Democratic collaborators and a calculatingly uninterested mainstream media to avoid answering one of the fundamental questions of the Benghazi debacle will no longer suffice. Republicans in both the House and the Senate have made it clear they have run out of patience with the administration's effort to keep the survivors isolated. If they are successful, this scandal may finally get the kind of national attention it so richly deserves.
The effort to keep the Benghazi survivors under wraps is nothing new. On December 12, 2012, Breitbart News revealed that Congressman Jason Chaffetz (R- UT) had been ''thwarted'' by the State Department from seeing any of these Americans, some of whom had been badly injured. "My understanding is that we still have some people in the hospital," Chaffetz said at the time. "I'd like to visit with them and wish them nothing but the best but the State Department has seen it unfit for me to know who those people are--or even how many there are. I don't know who they are. I don't know where they live. I don't know what state they're from. I don't even know how many there are. It doesn't seem right to me."
One would think that such an allegation would command the attention of investigative journalists across the nation. One would be wrong. Other than media referring back to the Breitbart story, there wasn't one other news outlet interested in either the survivors or the disturbing reality that the State Department was keeping them secret.
Questions about them were revived when former Secretary of State Hillary Clinton successfully stonewalled clueless Republicans during her testimony before the Senate Foreign Relations Committee last January. At that time it was reported that five of the 20-30 people who survived the attack were State Department Diplomatic Security agents evacuated to Ramstein Air Force Base in Germany. When Sen. Ron Johnson (R-WI) questioned Clinton, she revealed that she had only talked to one unnamed survivor, and that she felt it was "inappropriate" to talk to the others until they had been interrogated by the FBI. Not a single Republican bothered to ask why contact with the State Department would have tainted an FBI investigation. Clinton, who helped perpetrate the administration lie that the Benghazi attack was precipitated by an incendiary video posted months beforehand on the Internet, walked away unscathed.
After Clinton's appearance, Sen. John McCain claimed he wanted to hear directly from the survivors, saying they should come to Capitol Hill and report their own versions of what occurred on September 11. "They should certainly [do so]. If not come up to Capitol Hill at least be identified and take their statements as to what they saw," he said. He continued. "We still want the questions answered. We'll do everything we can to get answers to questions. The American people deserve them. Like Hillary said, 'there are four dead Americans.'"
In February, Breitbart reported that Bill Bransford, a Washington, D.C. attorney at Shaw Bransford & Roth P.C. who specializes in federal employment law, contended that the survivors cannot legally reveal to the press or most members of Congress that they were even witnesses to the carnage. ''First of all, I'm assuming that most of these people who witnessed the attack, except for the State Department folks, would be intelligence people, and they are not covered by the whistle blower protection laws,'' Bransford explained.
He further revealed that State Department employees must sign non-disclosure agreements. ''If somebody violates one of these non-disclosure agreements, the consequences could include interfering with a criminal investigation, obstruction of justice, criminal charges for releasing classified information, and those are pretty serious,'' he warned. Yet Bransford also said that State Department employees are covered by the Whistleblower Protection Act, but that a revision of the law, the Whistle Blower Protection Enhancement Act of 2012, was so new, some of the changes may not yet be in effect.
Bransford added that it is likely some survivors could talk to certain congressmen authorized to hear their stories, but that the congressmen "are precluded from further releasing the information. They know that it's classified and they can't release it to the media. They couldn't get up on the floor of the Senate or at a hearing and make a speech about it because it's classified and they seem to respect that,'' he said.
Breitbart also reported that Walter Reed National Military Medical Center, where most of the survivors were taken, "is not only heavily guarded on the outside but on the inside as well, some say" and that "what appeared to be Secret Service personnel [were] moving in and out of a closed wing of the floor that was off-limits to everyone else."
The fate of the survivors was pushed to the fore again on March 11, by CBS New's Sharryl Attkisson, one of the few investigative reporters who still takes her job seriously. Attkisson again reminded Americans that the survivors remain off limits, even as she revealed that an undisclosed number of witnesses who also have not spoken publicly remain at the U.S. compound in Tripoli. In addition, she reported that CBS "had filed multiple Freedom of Information requests for Benghazi-related material but none has been provided."
Four days later, the momentum began to shift. Stung by revelations that recuperating survivors still remain at Walter Reed, Republicans warned that unless the White House provides more information about the Benghazi attack, subpoenas could be issued to bring the survivors before Congress to testify. GOP leaders also threatened to hold up the confirmation of Deborah Jones, Christopher Stevens' replacement as U.S. Ambassador in Libya.
The warning is a follow up to a March 1 letter sent to newly appointed Secretary of State John Kerry by Reps. Frank Wolf (R-VA) and Jim Gerlach (R-PA) demanding the names and contact information for each survivor ''so that we can make appropriate arrangements.'' Those survivors reportedly include State Department and CIA officers, along with government contractors. Wolfe also argued that the survivors should not just be questioned, but given kudos for their bravery during the attack. ''We should be honoring them,'' Wolf said. ''We should be thanking them.''
Sen. Lindsey Graham (R-SC) is also composing a letter for Kerry, demanding access to the survivors, as well as the FBI files of their stories, "to see what they said." Graham wants to know if any of their testimony formed the basis of the Obama administration's blatantly false talking points immediately following the attack.
So far, Kerry has played the part of innocent naif. ''Why have we not heard from any of the Benghazi survivors? I can't tell you the answer to that,'' he told Fox News two weeks ago. ''I can tell you that I have visited with one of the survivors ... who is a remarkably courageous person, who is doing very, very well."
Sen. Jay Rockefeller (D-WW), a senior member on the Intelligence Committee, neatly summarized the priorities of his fellow Democrats, who apparently believe protecting the Obama administration takes precedence over everything else. ''Benghazi is over and done with,'' he said. ''As far as [Republicans] are concerned ... this has always been a political issue and that is the way they will continue to [pursue] it.''
Not quite. On the same day Rockefeller's remarks were published, a suspect in the Benghazi attacks, Faraj al-Shibli (also spelled "Chalabi"), was detained in Libya following his return from a trip to Pakistan. Libyan government officials allowed U.S. interrogators access to the man, who was a member of the Libyan Islamist Fighting Group that tried to overthrow Gadaffi in the 1990s. Al-Sjibli has reportedly had contact with Yemen-based al Qaeda in the Arabian Peninsula and al Qaeda members in Pakistan. He is the only known suspect in custody in connection with the attack, although his role remains unclear.
Two day later, Sen. Graham thrust the survivor issue front and center. In an interview with Fox News last Friday, he alleged that the survivors of the terrorist attack, who have been kept under wraps for over six months, have been pressured to remain silent. "The bottom line is they feel that they can't come forth, they've been told to be quiet," Graham insisted. Those allegations were quickly denied by the White House. "I'm sure that the White House is not preventing anyone from speaking," White House Press Secretary Jay Carney said.
Graham wasn't buying it. ''The best evidence of what happened in Benghazi is not a bunch of politicians in Washington trying to cover their political ass,'' he said. ''This is the people who lived through the debacle, and I'm going to do all I can to get them before the Congress and American people. We cannot let this administration or any other administration get away with hiding from the American people and Congress, people who were there in real time to tell the story,'' he added.
Graham continued. ''[The public needs] to hear from people who were on the ground, their desperate situation. They need to understand from people who were there for months how bad it was getting and how frustrated they were that nobody would listen to them and provide aid when they were requested,'' he said. ''This is a story of an administration deaf and blind to the reality of what people were living with every day in Libya.''
The same day, Rep. Chaffetz made another remarkable allegation. He told Fox News that after he finally learned the name of one survivor, he spoke to that person's father. "His father said 'yes this person is at the Bethesda Naval Hospital, but you won't be able to find him because the State Department changed his name on all his records,'" Chaffetz revealed. He was seriously disturbed by the revelation. "That's just beyond what this country is all about," he said.
Unfortunately, it is far from beyond what the Obama administration is all about. For the past six months, they have engaged in a series of tactics best described as a disinformation campaign designed to confuse the public to the point where they lose interest, or persuade them that getting to the truth about what happened in Benghazi is a political witch hunt engineered by Republicans.
It is nothing of the sort. Four Americans were killed, several more were injured, and not a single person has been held directly accountable for any of it. The administration even lied about the four State Department officials who ostensibly resigned in the wake of a scathing report by the Accountability Review Board stating that security was ''grossly inadequate'' at the compound. All of them remain on the government payroll. And Hillary Clinton, who lied repeatedly to protect the administration, and whose acceptance of "responsibility" for the grossly inadequate security at Benghazi amounted to exactly nothing, remains a viable candidate for president in 2016.
Eyewitness testimony by the remaining survivors has the potential to devastate this administration. It would likely blow a large hole in Obama's phony Middle East narrative about al Qaeda being "on the run," and it might even reveal why any attempts to rescue Americans under attack were either aborted, or never undertaken at all.
In short, nothing about Benghazi accrues to the interest of this president or his administration. It remains to be seen if Republicans have the spine to pursue the truth wherever it goes, despite the pushback they will inevitably face from the Obama administration and their media cheerleaders. Getting to the truth cannot be "beyond what this country is all about."
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Hillary Clinton's Private Email Server Subject of Attempted Cyberattacks From China, Korea, Germany | Video | TheBlaze.com
WASHINGTON (AP) '-- Hillary Rodham Clinton's private email server, which stored some 55,000 pages of emails from her time as secretary of state, was the subject of attempted cyberattacks originating in China, South Korea and Germany after she left office in early 2013, according to a congressional document obtained by The Associated Press.
While the attempts were apparently blocked by a ''threat monitoring'' product that Clinton's employees connected to her network in October 2013, there was a period of more than three months from June to October 2013 when that protection had not been installed, according to a letter from Sen. Ron Johnson, R-Wis., chairman of the Homeland Security and Government Affairs Committee. That means her server was possibly vulnerable to cyberattacks during that time.
Democratic presidential candidate Hillary Rodham Clinton speaks during a community forum, Tuesday, Oct. 6, 2015, in Davenport, Iowa. (AP/Charlie Neibergall)
Johnson's letter to Victor Nappe, CEO of SECNAP, the company that provided the threat monitoring product, seeks a host of documents relating to the company's work on Clinton's server and the nature of the cyber intrusions detected. Johnson's committee is investigating Clinton's email arrangement.
Clinton has not said what, if any, firewall or threat protection was used on her email server before June 2013, including the time she was secretary of state from 2009 to 2013 and the server was kept in her home in the New York City suburbs.
A February 2014 email from SECNAP reported that malicious software based in China ''was found running an attack against'' Clinton's server. In total, Senate investigators have found records describing three such attempts linked to China, one based in Germany and one originating in South Korea. The attacks occurred in 2013 and 2014. The letter describes four attacks, but investigators have since found records about a fifth attempt, said officials who were not authorized to discuss the matter publicly.
It was not immediately clear whether the attempted intrusions into Clinton's server were serious espionage threats or the sort of nuisance attacks that hit computer servers the world over. But the new revelations underscore the extent to which any private email server is a target, raising further questions about Clinton's decision to undertake sensitive government business over private email stored on a homemade system.
Any hackers who got access to her server in 2013 or 2014 could have stolen a trove of sensitive email traffic involving the foreign relations of the United States. Thousands of Clinton emails made public under the Freedom of Information Act have been heavily redacted for national security and other reasons.
Clinton ''essentially circumvented millions of dollars' worth of cybersecurity investment that the federal government puts within the State Department,'' said Justin Harvey, chief security officer of Fidelis Cybersecurity.
''She wouldn't have had the infrastructure to detect or respond to cyber attacks from a nation-state,'' he said. ''Those attacks are incredibly sophisticated, and very hard to detect and contain. And if you have a private server, it's very likely that you would be compromised.''
A spokesman for the Clinton campaign did not answer detailed questions from The Associated Press about the cyber intrusions. Instead, spokesman Brian Fallon attacked Johnson by linking him to the House Benghazi committee inquiry, which the campaign dismissed in a recent media ad as politically motivated.
''Ron Johnson is ripping a page from the House Benghazi Committee's playbook and mounting his own, taxpayer-funded sham of an investigation with the sole purpose of attacking Hillary Clinton politically,'' campaign spokesman Fallon said by email. ''The Justice Department is already conducting a review concerning the security of her server equipment, and Ron Johnson has no business interfering with it for his own partisan ends.''
The FBI is investigating whether national security was compromised by Clinton's email arrangement.
In June 2013, after Clinton had left office, the server was moved from her Chappaqua, New York, home to a data center in northern New Jersey, where it was maintained by a Denver technology company, Platte River Networks, records show.
This Tuesday, Aug. 18, 2015 photo shows the front entrance of Platte River Networks, a Colorado-based technology services company that began managing Hillary Rodham Clinton's private computer server in 2013, north of downtown Denver. A forensic examination of Hillary Rodham Clinton's private computer server could unearth more details than what she put in her emails. It could answer lingering questions about the security of her system, who had access to it and whether outsiders tried to crack its contents. (AP/Brennan Linsley)
In June 2013, Johnson's letter says, Platte River hired SECNAP Network Security Corp. to use a product called CloudJacket SMB, which is designed to block network access by ''even the most determined hackers,'' according to company literature. But the product was not up and running until October, according to Johnson's letter, raising questions about how vulnerable Clinton's server was during the interim.
SECNAP is not a well-known computer security provider. The company's website and promotional literature describe CloudJacket as a monitoring system designed to counter unauthorized intrusions and monitor threats around the clock. Corporate documents show SECNAP has been in existence since at least 2002, selling computer spam filter and firewall products.
A SECNAP representative declined to comment, citing company policy.
The AP reported last month that Russia-linked hackers sent Clinton emails in 2011 '' when she was still secretary of state '' loaded with malware that could have exposed her computer if she opened the attachments. It is not known if she did.
The attacks Johnson mentions in his letter are different, according to government officials familiar with them. They were probing Clinton's server directly, not through email.
The stealthy, Eric Schmidt-backed startup that's working to put Hillary Clinton in the White House - Quartz
An under-the-radar startup funded by billionaire Eric Schmidt has become a major technology vendor for Hillary Clinton's presidential campaign, underscoring the bonds between Silicon Valley and Democratic politics.
The Groundwork, according to Democratic campaign operatives and technologists, is part of efforts by Schmidt'--the executive chairman of Google parent-company Alphabet'--to ensure that Clinton has the engineering talent needed to win the election. And it is one of a series of quiet investments by Schmidt that recognize how modern political campaigns are run, with data analytics and digital outreach as vital ingredients that allow candidates to find, court, and turn out critical voter blocs.
But campaigns'--lacking stock options and long-term job security'--find it hard to attract the elite engineering talent that Facebook, Google, and countless startups rely on. That's also part of the problem that Schmidt and the Groundwork are helping Clinton's team to solve.
The Groundwork is one of the Clinton campaign's biggest vendors, billing it for more than $177,000 in the second quarter of 2015, according to federal filings. Yet many political operatives know little about it. Its website consists entirely of a grey-on-black triangle logo that suggests ''the digital roots of change'' while also looking vaguely like the Illuminati symbol:
''We're not trying to obfuscate anything, we're just trying to keep our heads down and do stuff,'' says Michael Slaby, who runs the Groundwork. He was the chief technology officer for president Barack Obama's 2008 campaign, a top digital executive for Obama 2012, and the former chief technology strategist for TomorrowVentures, Schmidt's angel investment fund.
He explained that the Groundwork and its parent company, Chicago-based Timshel'--named for a Hebrew word meaning ''you may'' and devoted to ''helping humanity solve our most difficult social, civic, and humanitarian challenges'''--are ''all one project, with the same backers,'' whom he declined to name.
''There are a lot of people who can write big checks. Eric recognizes how the technology he's been building his whole career can be applied to different spaces.'' Schmidt did not respond to several requests for comment. But several Democratic political operatives and technologists, who would only speak anonymously to avoid offending Schmidt and the Clinton campaign, confirmed that the Groundwork is funded at least in part by the Alphabet chairman.
The Groundwork was initially based in an office in downtown Brooklyn just blocks from the headquarters of its biggest client: the Clinton campaign. There, a staff made up mostly of senior software engineers began building the tools and infrastructure that could give her a decisive advantage.
Slaby has a reputation for being able to bridge the cultural divide between politicos and techies. And sources say the Groundwork was created to minimize the technological gap that occurs between presidential campaign cycles while pushing forward the Big Data infrastructure that lies at the heart of modern presidential politics.
There is also another gap in play: The shrinking distance between Google and the Democratic Party. Former Google executive Stephanie Hannon is the Clinton campaign's chief technology officer, and a host of ex-Googlers are currently employed as high-ranking technical staff at the Obama White House. Schmidt, for his part, is one of the most powerful donors in the Democratic Party'--and his influence does not stem only from his wealth, estimated by Forbes at more than $10 billion.
At a time when private-sector money is flowing largely unchecked into US politics, Schmidt's funding of the Groundwork suggests that 2016's most valuable resource may not be donors capable of making eight-figure donations to Super PACs, but rather supporters who know how to convince talented engineers to forsake (at least for awhile) the riches of Silicon Valley for the rough-and-tumble pressure cooker of a presidential campaign.
''There are a lot of people who can write big checks,'' Slaby says. ''Eric recognizes how the technology he's been building his whole career can be applied to different spaces. The idea of tech as a force multiplier is something he deeply understands.''
The technology that helped re-elect ObamaAlthough Obama's technology staff downplays credit for his election victories, there's no doubt they played a crucial role. One former Obama staffer, Elan Kriegel, who now leads analytics for the Clinton campaign, suggested the technology accounted for perhaps two percentage points of the campaign's four percent margin of victory in 2012.
The 2012 campaign's analytics team constructed a complex model of the electorate to identify 15 million undecided voters that could be swayed to Obama's side. They drew on databases which compiled a comprehensive record of voters' interactions with the campaign'--Facebook pages liked, volunteer contacts, events attended, money donated'--and assigned them a score based on how strongly they supported Obama.
Those carefully constructed models and databases paid dividends for everything from advertising and campaign fundraising emails'--which were rigorously A/B tested to determine the optimum wording and design (subject lines that said ''Hey!'' were found to be annoying but effective)'--to voter polling and get-out-the-vote efforts on election day.
Members of the Obama tech team, including Michael Slaby and Harper Reed, with Eric Schmidt in 2012.(Harper Reed)Perhaps the standout innovation from the Obama campaign was known as ''Optimizer,'' a tool that allowed the campaign to deploy carefully targeted television ads. Rather than rely on broad demographic data about programs and time slots, the Obama tech team accessed detailed information from TV set-top boxes to identify the most cost-efficient ways to reach hard-to-reach voters. The campaign's top media consultant, Jim Margolis'--now Clinton's top media consultant'--estimates Optimizer saved the campaign perhaps $40 million.
After the campaign, Optimizer became the cornerstone of a new startup called Civis that spun out of the Obama campaign'--and it had its genesis in an election day visit by Schmidt to Chicago.
From election day to startupAs the internal polling numbers rolled in, the boiler room full of campaign staff and White House aides also included a tech executive: Schmidt, whose financial support and advice to the campaign made him an unofficial fixture. With the campaign drawing to its victorious conclusion, Schmidt was shifting into another mode: Talent-hunter and startup funder.
Schmidt and Obama at a White House meeting in 2009.(AP Photo/Charles Dharapak)When the campaign's analytics team declared victory at 2pm'--hours before voting ended'--by comparing early results to their model, its chief Dan Wagner recalls that Schmidt walked up to him and asked two questions: ''Who are you? And what algorithms are you using?''
Wagner helped develop the Obama team's ground-breaking approach to analytics in 2008, and made further refinements in 2012. But he says it was Schmidt who saw the commercial potential for the project'--not just for political campaigns, but as a way to help private-sector companies decide how to effectively allocate their marketing budgets.
''I didn't have any commercial intentions for anything, I was just trying to survive and elect Barack Obama,'' Wagner says.
Nevertheless, immediately after the election, Schmidt backed Wagner and other members of his campaign team by becoming the sole investor in Civis, their analytics startup. Schmidt also invested in Circ.le, a social shopping startup run by Obama 2012 alumnus Carol Davidsen, who played a key role in the creation of Optimizer. (If you're keeping score, that makes three Schmidt-funded startups run by ex-Obama staffers: Civis, Circ.le, and the Groundwork.)
What Wagner's team built during the campaign, despite its innovativeness, was fairly clunky. ''The thing that we built was pretty much a piece of junk, made of plywood in our garage,'' Wagner says.
That's because analyzing giant troves of data, knitting together disparate databases, and making it all work seamlessly is a tricky business, especially under the low-resource, high-pressure conditions of a presidential campaign. Building that tech infrastructure requires the most expensive kind of engineering talent, working under punishing time constraints. For Obama's 2012 team, Slaby hired a developer named Harper Reed to serve as the campaign's chief technology officer and build the campaign's tech underpinnings.
Now Clinton's campaign needs to build that infrastructure for themselves'--or, even better, have a company like the Groundwork help build it for them. This time around, Schmidt backed the startup before the campaign even started.
Like Salesforce.com, for politicsSo what does the Groundwork do? The company and Clinton's campaign are understandably leery of disclosing details.
According to campaign finance disclosures, Clinton's campaign is the Groundwork's only political client. Its employees are mostly back-end software developers with experience at blue-chip tech firms like Netflix, Dreamhost, and Google.
Clinton and Schmidt at a 2014 Google event, just days after the Groundwork was incorporated.(Google)The firm was formed in June 2014, shortly after Clinton released a memoir about her time as US secretary of state and began a media blitz that signaled her intent to run for president'--including an appearance with Schmidt at Google headquarters'--though she did not officially announce her run until the spring of 2015.
Democratic political operatives and technologists said that the Groundwork's focus is on building a platform that can perform the critical functions of modern campaigning.
These sources tell Quartz that the Groundwork has been tasked with building the technological infrastructure to ingest massive amounts of information about voters, and develop tools that will help the campaign target them for fundraising, advertising, outreach, and get-out-the-vote efforts'--essentially to create a political version of a customer relationship management (CRM) system, like the one that Salesforce.com runs for commerce, but for prospective voters.
''They are a technology platform company, not all that dissimilar from a Blue State Digital,'' a Clinton campaign staffer told Quartz. Blue State grew out of Howard Dean's 2004 presidential run and has become a cornerstone technology contractor for the Democratic Party and allied groups. ''They provide a suite of services, donation, forum builders, things like that.''
The range of tasks anticipated for this platform'--including volunteer coordination, fundraising, social-media marketing and events'--makes it seem like the spiritual heir of the platform that Reed's team built to integrate the Obama campaign's various vendors, tools and data sources, which was called Narwhal.
That kind of database integration and number crunching may not sound terribly exciting. But building a list is the foundation of any campaign, and doing so digitally, with analytics and communications tools scaling across a nationwide campaign'--with hundreds of paid staff and tens of thousands of volunteers'--is no easy job, even for experienced engineers.
And it is an essential one for modern-day campaigns. The Romney campaign's attempt to build a tool to compete with Narwhal (they named it Orca, the Narwhal's natural enemy) famously fell apart on election day.
No Drama'...Clinton?Hillary Clinton's last presidential run, like many ultimately unsuccessful campaigns, was hobbled by infighting among her consultants and staff. Even in the ''no-drama Obama'' 2012 team, the team had its own conflicts, with the engineers charged with building digital tools butting heads with staff charged with the campaign's digital strategy.
''Who's going to say, 'Hey, billionaire smartest tech guy on the planet, thanks but no thanks?''' Veterans of Obama's campaign say Clinton's hierarchy under campaign manager Robbie Mook is better organized to avoid such conflicts this time around, with chief digital strategist Teddy Goff over-seeing both the digital director Katie Dowd and Hannon, the highly regarded former Google executive.
''Hiring Steph may have been Hillary's sharpest move to date,'' says venture capitalist and Democratic fundraiser Chris Sacca, who tells Quartz she is ''one of the most gifted and diligent technologists I have ever worked with.''
One source says Hannon is trying to reduce the campaign's reliance on the Groundwork. But Schmidt's stature in Silicon Valley, and his status as a major Clinton backer, may complicate any efforts to constrain the Groundwork's involvement, and distort the typical balance of power between the campaign and a key vendor.
''Imagine you're a mid-level person inside the campaign, or even the campaign manager,'' one veteran Democratic operative says. ''Who's going to say, 'Hey, billionaire smartest tech guy on the planet, thanks but no thanks?'''
Are startups the new Super PACs?Today, corporations and wealthy donors have many ways to seek influence with politicians. While their donations to campaigns are limited to a maximum of $5,000 or hundreds of thousands to national party committees, they can also now set up Super PACs with unlimited money for political activities, so long as they don't coordinate with the official campaigns.
That unlimited money is all well and good for many things a campaign needs'--TV advertising, for example, and even field work. But if you want to help make a campaign more tech-savvy, it gets harder: a super PAC, nominally independent under byzantine campaign finance laws, can't pay for tech infrastructure.
''Your world class skills are worth less because you're doing it for a good cause.'' That's the beauty of the Groundwork: Instead of putting money behind a Super PAC that can't coordinate with the campaign, a well-connected donor like Schmidt can fund a startup to do top-grade work for a campaign, with the financial outlay structured as an investment, not a donation.
Schmidt, a major political donor, did not give money to Clinton's campaign in the first half of this year, though a campaign official says he has visited the campaign's Brooklyn headquarters and is supportive of her candidacy.
With tech policy an increasingly important part of the president's job'--consider merely the issues of NSA surveillance and anti-trust policy, not to mention self-driving cars and military robots'--helping to elect yet another president could be incredibly valuable to Schmidt and to Google.
And Schmidt's largesse is not something that other candidates, either rival Democrats like Bernie Sanders or the crowded field of Republicans, will be able to easily match. The billionaire Alphabet executive chairman now boasts a growing track record for funding politically-minded tech startups. The jobs these create could make it easier to attract top engineers to political work without asking them to sacrifice pay and equity for a brief campaign sabbatical.
Slaby says that Groundwork and Timshel exist in part to help talented, highly in-demand engineers work for a larger purpose without having to totally abandon their compensation expectations.
''We've institutionalized this idea that if people are going to work on things that are important to them, they're going to take a big pay cut'--your world class skills are worth less because you're doing it for a good cause,'' says Slaby. ''At the end of the day people crave purpose. But you also want to pay your mortgage and send your kids to college. That's an unfortunate choice we put to people a lot of the time.''
But the Groundwork's success in 2016 will not ultimately be judged on its prospects as a startup, but whether it helps to make Clinton the 45th president of the United States of America.
''Something I always say is, 'You get zero votes for innovation,''' Goff, Clinton's top digital staffer, tells Quartz. ''If you do something innovative that gets you votes, that's good '... If you do something innovative and it doesn't get you votes but a VC would like it, we don't care.''
F-Germany
Mercedes, Honda, Mazda, Mitsubishi join Volkswagen in the diesel emissions scandal | Statesman Tribune
In accordance with the Guardian reviews, 4 different automotive firms have joined Volkswagen within the emissions scandal row. Mercedes-Benz, Honda, Mazda and Mitsubishi's diesel vehicles have been alleged to emit more air pollution than in regulatory tests.
Reportedly, Honda models emit six times the regulatory limit of NOx pollution and different models emit 20 times the NOx pollution popping out of their exhaust pipes.
NOx pollution is believed to trigger untimely deaths and has also resulted in increase in health costs. Nick Molden whose company Emissions Analytics examined the automobiles informed the Guardian that ''the issue is a systematic one''.
It was revealed that Renault, Nissan, Hyundai, Citroen, Fiat, Volvo and Jeep have been additionally involved in pumping out extra NOx than permitted.
Information from Emissions Analytics revealed that Mercedes-Benz vehicles emit 2.2 times extra NOx than permitted. Honda, Hyundai and all the other automobiles' NOx emissions are alleged to be higher on the street than within the EU lab test.
In accordance with the Guardian, Mercedes and Honda stated they're supporting a tightening of rules. So as to assist strengthen regulatory and consumer confidence, Honda mentioned they supported additional testing.
An emissions expert at Transport and Environment, Greg Archer informed the Guardian that the brand new emissions analytics outcome show that Volkswagen scandal is simply the beginning. ''What we are seeing here is a diesel-gate that covers many different car models.''
The one solution according to him is to conduct recent tests on the road and confirm it by an authority which isn't biased or paid by the car company.
Last month, Volkswagen had been discovered to have flouted stringent US emission norms, by fitting a defect gadget that makes the engine operate at a decreased capacity, thereby emitting lesser gases when the car determines that it's being inspected. In any other case in the real world, the defect gadget will flip off and can perform at full capacity for a greater performance.
Volkswagen had stated that almost 11 million vehicles worldwide have the defect machine. Volkswagen Passenger Cars hds mentioned that about 5 million vehicles have the cheating machine, whereas Audi admitted that 2.1 million of its vehicles are affected, and 1.2 million Skodas have the gadget.
Four more carmakers join diesel emissions row | Environment | The Guardian
A measuring hose for emissions inspections in diesel engines sticks in the exhaust tube of a Volkswagen Golf 2.0. Photograph: Patrick Pleul/AFP/Getty Images
Mercedes-Benz, Honda, Mazda and Mitsubishi have joined the growing list of manufacturers whose diesel cars are known to emit significantly more pollution on the road than in regulatory tests, according to data obtained by the Guardian.
Related:Wide range of cars emit more pollution in realistic driving tests, data shows
In more realistic on-road tests, some Honda models emitted six times the regulatory limit of NOx pollution while some unnamed 4x4 models had 20 times the NOx limit coming out of their exhaust pipes.
''The issue is a systemic one'' across the industry, said Nick Molden, whose company Emissions Analytics tested the cars. The Guardian revealed last week that diesel cars from Renault, Nissan, Hyundai, Citroen, Fiat, Volvo and Jeep all pumped out significantly more NOx in more realistic driving conditions. NOx pollution is at illegal levels in many parts of the UK and is believed to have caused many thousands of premature deaths and billions of pounds in health costs.
All the diesel cars passed the EU's official lab-based regulatory test (called NEDC), but the test has failed to cut air pollution as governments intended because carmakers designed vehicles that perform better in the lab than on the road. There is no evidence of illegal activity, such as the ''defeat devices'' used by Volkswagen.
Volkswagen's US president on emissions scandal: I'm sorryThe new data is from Emissions Analytics' on-the-road testing programme, which is carefully controlled and closely matches the real-world test the European commission wants to introduce. The company tested both Euro 6 models, the newest and strictest standard, and earlier Euro 5 models. Data showed that:
Mercedes-Benz's diesel cars produced an average of 0.406g/km of NOx on the road, at least 2.2 times more than the official Euro 5 level and five times higher than the Euro 6 level. A spokesman for Mercedes-Benz said: ''Since real-world driving conditions do not generally reflect those in the laboratory, the consumption figures may differ from the standardised figures.''Honda's diesel cars emitted 0.484g/km of NOx on average, between 2.6 and six times the official levels. A spokesman for Honda said: ''Honda tests vehicles in accordance with European legislation.''Mazda's diesel cars had average NOx emissions of 0.293g/km in the real world, between 1.6 and 3.6 times the NEDC test levels. One Euro 6 model, the Mazda 6 2.2L 5DR, produced three times the official NOx emissions. A spokesman for Mazda said: ''In compliance with the law, Mazda works hard to ensure that every petrol and diesel engine it makes fully complies with the regulations.''Mitsubishi diesel cars produced an average of 0.274g/km of NOx, between 1.5 and 3.4 higher than in the lab. ''The NEDC was never intended to represent real-world driving,'' said a spokesman for Mitsubishi.The Emissions Analytics data seen by the Guardian also found Citroen, VW and Audi NOx emissions to be higher on the road than in the EU lab test.This is a massive public health disgrace. The failure to prevent vehicles breaking pollution rules will have cost lives
Friends of the EarthMolden said Emissions Analytics had analysed about 50 Euro 6 diesels and 150 Euro 5 diesels, with only five having real-world NOx levels that matched the regulatory test. The failure of the EU's NOx test to limit real-world emissions, and tackle air pollution, has been known for some years, but specific manufacturers have not been named.
''The VW issue in the US was purely the trigger which threw light on a slightly different problem in the EU - widespread legal over-emissions,'' Molden said. ''For NOx, [diesel] cars are on average four times over the legal limit, because of the lenient nature of the test cycle in the EU.'' The Emissions Analytics tests showed 4x4s to have the highest NOx emissions, with several unnamed models emitting 15 times official levels and one more than 20 times.
''MEPs have been fighting for years to reform EU rules on diesel emissions-testing so they reflect real-world emissions. Yet the powerful car lobby and national governments have fiercely resisted these life-saving changes,'' said Catherine Bearder, a LibDem MEP and a lead negotiator in the European parliament on the EU's new air quality law. ''The people of Europe have waited long enough for cleaner air, they must not be made to wait any longer.''
Friends of the Earth air pollution campaigner Jenny Bates said: ''With further manufacturers implicated, this is yet more evidence that this scandal goes way beyond VW, and should cause decisionmakers to question the very future of diesel vehicles on our roads. This is a massive public health disgrace and the failure to prevent vehicles breaking pollution rules will have cost lives.''
Related:Emissions scandal: how the drive for diesel ran out of gas
Two car companies, Mercedes and Honda, said that they supported a tightening of the regulations. ''Mercedes-Benz emphatically supports the introduction of the WLTP test [which] is designed to supersede the NEDC, with the goal of bringing standardised and real-world consumption closer together,'' said the spokesman. ''To this end, we actively support the dialogue between industry (through trade group ACEA [European Automobile Manufacturers Association]) and the authorities.'' Honda said it supported ''additional testing in order to help strengthen regulatory and consumer confidence''.
However, in a letter seen by Reuters to EU officials, the ACEA chairman and Renault chief executive, Carlos Ghosn, said that no significant progress on NOx was possible before 2019. Reuters said that ACEA, which lobbies for Europe's carmakers in Brussels, told the officials on 1 October that the NOx limit for a new, more realistic test should be 70% higher than today's limit. An ACEA spokeswoman said it was ''too early in the process to confirm or comment on hypothetical figures.''
''These new test results [from Emissions Analytics] prove that the Volkswagen scandal is just the tip of the iceberg. What we are seeing here is a dieselgate that covers many brands and many different car models,'' said Greg Archer, an emissions expert at Transport & Environment. ''The only solution is a strict new test that takes place on the road and verified by an authority not paid by the car industry.''
CYBER!
Obama Won't Seek Access to Encrypted User Data - NYTimes.com
CUPERTINO, Calif. '-- The Obama administration has backed down in its bitter dispute with Silicon Valley over the encryption of data on iPhones and other digital devices, concluding that it is not possible to give American law enforcement and intelligence agencies access to that information without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.
With its decision, which angered the F.B.I. and other law enforcement agencies, the administration essentially agreed with Apple, Google, Microsoft and a group of the nation's top cryptographers and computer scientists that millions of Americans would be vulnerable to hacking if technology firms and smartphone manufacturers were required to provide the government with ''back doors,'' or access to their source code and encryption keys.
That would enable the government to see messages, photographs and other data now routinely encrypted on smartphones. Current technology puts the keys for access to the information in the hands of the individual user, not the companies.
The first indication of the retreat came on Thursday, when the F.B.I. director, James B. Comey, told the Senate Homeland Security and Governmental Affairs Committee that the administration would not seek legislation to compel the companies to create such a portal.
Timothy D. Cook of Apple opposes a ''back door'' to data.
Richard Drew / Associated Press
But the decision, made at the White House a week ago, goes considerably beyond that.
While the administration said it would continue to try to persuade companies like Apple and Google to assist in criminal and national security investigations, it determined that the government should not force them to breach the security of their products. In essence, investigators will have to hope they find other ways to get what they need, from data stored in the cloud in unencrypted form or transmitted over phone lines, which are covered by a law that affects telecommunications providers but not the technology giants.
Mr. Comey had expressed alarm a year ago after Apple introduced an operating system that encrypted virtually everything contained in an iPhone. What frustrated him was that Apple had designed the system to ensure that the company never held on to the keys, putting them entirely in the hands of users through the codes or fingerprints they use to get into their phones. As a result, if Apple is handed a court order for data '-- until recently, it received hundreds every year '-- it could not open the coded information.
Mr. Comey compared that system to the creation of a door no law officers could enter, or a car trunk they could not unlock. His concern about what the F.B.I. calls the ''going dark'' problem received support from the director of the National Security Agency and other intelligence officials.
But after a year of study and extensive White House debate, President Obama and his advisers have reached a broad conclusion that an effort to compel the companies to give the government access would fail, both politically and technologically.
''This looks promising, but there's still going to be tremendous pressure from law enforcement,'' said Peter G. Neumann, one of the nation's leading computer scientists and a co-author of a paper that examined the government's proposal for special access. ''The N.S.A. is capable of dealing with the cryptography for now, but law enforcement is going to have real difficulty with this. This is never a done deal.''
In the paper, released in July, Mr. Neumann and other top cryptographers and computer scientists argued that there was no way for the government to have a back door into encrypted communications without creating an opening that would be exploited by Chinese and Russian intelligence agents, cybercriminals and terrorist groups.
Inside the White House, the Office of Science and Technology Policy came largely to the same conclusion. Those determinations surprised the F.B.I. and local law enforcement officials, who had believed just months ago that the White House would ultimately embrace their efforts.
The intelligence agencies were less vocal, which may reflect their greater capability to search for and gather information. The National Security Agency spends vast sums to get around digital encryption, and it has tools and resources that local law enforcement officials still do not have and most likely never will.
Disclosures by the former N.S.A. contractor Edward J. Snowden showed the extent of the agency's focus on cracking and circumventing the encryption of digital communications, including those of Apple, Facebook, Google and Yahoo users.
There were other motivations for the administration's decision. Mr. Obama and his aides had come to fear that the United States could set a precedent that China and other nations would emulate, requiring Apple, Google and the rest of America's technology giants to provide them with the same access, officials said.
Timothy D. Cook, the chief executive of Apple, sat at the head table with Mr. Obama and Xi Jinping, the Chinese president, at a state dinner at the White House last month. According to government officials and industry executives, Mr. Cook told Mr. Obama that the Chinese were waiting for an opportunity to seize on administration action to insist that Apple devices, which are also encrypted in China, be open to Beijing's agents.
In January, three months after Mr. Comey began pressing companies for special government access, Chinese officials had threatened to do just that: They considered submitting foreign companies to invasive audits and requiring them to build back doors into their hardware and software. Those rules have not been put into effect.
The Obama administration's position was also undercut by officials' inability to keep their own data safe from Chinese hackers, as shown by the extensive cyberattack at the Office of Personnel Management discovered this year. That breach, and its aftermath, called into question whether the government could keep the keys to the world's communications safe from its adversaries in cyberspace.
White House officials said they would continue trying to persuade technology companies to help them in investigations, but they did not specify how.
''As the president has said, the United States will work to ensure that malicious actors can be held to account, without weakening our commitment to strong encryption,'' said Mark Stroh, a spokesman for the National Security Council. ''As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors' use of their encrypted products and services. However, the administration is not seeking legislation at this time.''
But here in Silicon Valley, executives did not think the government's announcement went far enough.
According to administration officials and technology executives, Mr. Cook of Apple has pressed the White House for a clear statement that it will never seek a back door in any form, legislative or technical '-- a statement he hoped to take to Beijing, Moscow and even London. Prime Minister David Cameron of Britain has threatened to ban encrypted devices and services, like the iPhone and Facebook's popular WhatsApp messaging service, but has done nothing so far to make good on that threat.
Technology executives are determined to reassure customers abroad that American intelligence agencies are not reading their digital communications. It is an effort driven by economics: 64 percent of Apple's revenue originates overseas.
Apple, Google, Facebook and Microsoft argue that people put not only their conversations but their entire digital lives '-- medical records, tax returns, bank accounts '-- into a device that slips into their pocket. While Mr. Obama has repeatedly said he is sympathetic to the concerns of law enforcement officials, he made clear during a visit to Silicon Valley in February that he was also aware of privacy concerns and that he sought to balance both interests.
Technologists responded that, with regard to encryption, no such balance existed. ''The real problem is, I don't see any middle ground for dumbing down everything to make special access possible and having the secure systems we need for commerce, government and everything else,'' Mr. Neumann said.
European Aviation Agency Warns of Aircraft Hacking | Threatpost | The first stop for security news
United Airlines Hands Out Million-Mile Bug BountyJuly 14, 2015 , 11:19 am
Ky said at a press conference that it took the expert five minutes to crack ACARS and a couple of days to access the aircraft control system on the ground.
''For security reasons, I will not tell you how he did it, but I let you judge if the risk is high or low,'' Ky was quoted in an article published by France's Les Echos.
Some of these issues were exposed by security researcher Huge Teso during a 2013 presentation at Hack in the Box. Teso targeted ACARS specifically and disclosed a number of on-board system vulnerabilities. Teso said he found relatively little security protecting communication between the aircraft the ground.
''The system's weak point is that it doesn't verify communication packages on the way from the ground to the plane,'' said Andrey Nikishin, head of future technologies projects development at Kaspersky Lab. ''Because of that, it is possible to spoof the system by inserting a new package along the way.''
Nikishin said that an attacker could send the pilots false messages that could affect their decision making in the air.
''Theoretically, a malicious user can influence a pilot's decision to change the route, if, through the spoofing flow, he sends the plane a fake message about an upcoming storm,'' Nikishin said. ''The same malicious scheme could be applied to spoof GPS, making the system believe that it is located in a different place from where it actually is.''
The Les Echos article cites research done by the International Civil Aviation Organization that determined because aircraft navigation and other control systems are supposed to be air gapped from non-critical systems such as entertainment, that the risk of hacking critical systems was low.
''ACARS uses a proprietary encoding/decoding scheme that has been in use since 1978 '' when aircraft equipment was not designed with cybersecurity in mind, Nikishin said. ''This makes it outdated, and we believe that aircraft manufacturers should have already started to develop a new system, with a new approach.''
Ky's revelation comes a day ahead of the introduction of a new European air traffic control system called Sesar.
''Tomorrow, with the introduction of Sesar and the possibility for the air traffic control to directly ive instructions to the aircraft control system, this risk will be multiplied,'' Ky said. ''We need to start by putting in place a structure for alerting airlines to cyber attacks.''
This isn't the first time the security of aircrafts has been questioned this year. In May, researcher Chris Roberts was pulled off a United Airlines flight after tweeting about hacking the flight he was on. Roberts was detained and questioned by the FBI, which reported that Roberts said he had burrowed through the aircraft's onboard entertainment center to reach critical systems and issue commands for the plane to climb or bank.
Roberts' claims were questioned by aircraft manufacturers; Boeing, for example, told CNN its entertainment and navigation systems were not connected and that Roberts' claims were impossible.
NA-Tech News
Alexa commercials trigger Alexa. Loophole soon?
Elon Musk: Here's why we call Apple the 'Tesla graveyard' - MarketWatch
Taking the old Silicon Valley ''our engineers are better than yours'' trash talk to a fresh level, Tesla Motors Inc.'s chief executive Elon Musk had some rather spicy, not-too-nice things to say about Apple Inc.'s workforce.
Not to mention about Apple's electric-car plans.
In an interview with German business newspaper Handelsblatt, Musk swatted away a question about Apple AAPL, +2.39% poaching ''important'' engineers from Tesla TSLA, -2.66%MacRumors is among those who have reported on the topic; in August, it said Apple had hired a senior engineer away from Musk's car company to work on an electric-auto project.
Not skipping a beat, here's how Musk responded:
''Important engineers? They have hired people we've fired. We always jokingly call Apple the 'Tesla Graveyard.' If you don't make it at Tesla, you go work at Apple. I'm not kidding.''
And while Wall Street may be working itself into an excited tizzy over the prospect of an electric car from Apple, Musk seemed to suggest Cupertino is out of its league here. When asked if he's taking ''Apple's ambitions seriously,'' the Tesla chief said: ''Did you ever take a look at the Apple Watch?'' Then, apparently, he chuckled.
Musk tsk-tsk'd away at those electric car ambitions from Apple, saying it's a complex thing, not like a smartphone. ''You can't just go to a supplier like Foxconn and say: 'Build me a car,''' he said.
But he did concede '-- while getting another dig in '-- that it's the ''next logical thing [for Apple] to finally offer a significant innovation.''
Who is Musk taking seriously? China. The Tesla chief said there are four electric-car start-ups funded from China just in the U.S., and they're at the ''billion-dollar level.''
One challenge for Tesla's ambitions in China is that the company's cars aren't produced within that country, meaning it has to pay 25% import taxes. But when Chinese auto makers export to the U.S., they pay only 3%. If China wants a ''level playing field,'' says Musk, it needs to offer one too.
And profitability for Tesla? Musk said it can't be ''making losses forever,'' and he hopes the company will be profitable by next year. But don't expect them to ''slow down our growth for the sake of profitability,'' he says.
As far as Twitter is concerned, the war may just be on now, between Apple and Tesla.
VIDEO-CLIPS-DOCS
VIDEO-Pentagon Giving Up Building Syrian Rebel Force - YouTube
So-called Islamic State group (IS) has shifted its propaganda distribution to the secure mobile messaging app Telegram from Twitter, where its accounts have been repeatedly shut down over the past year.
IS appears to be exploiting a new tool introduced by the app last month, which allows users to broadcast their messages to an unlimited number of members via their own Telegram "channel".
IS appears to be hoping the Berlin-based Telegram will offer it a more stable and resilient platform for its propaganda, faced with a sustained clampdown on its Twitter presence.
But Telegram itself suggests it will take down illegal material that is made publicly available via the app - including posts related to IS, according to its website.
BBC Monitoring looks at how IS has started to use Telegram as its first point-of-call for spreading its propaganda.
BBC Monitoring reports and analyses news from TV, radio, web and print media around the world. You can follow BBC Monitoring on Twitter and Facebook.
VIDEO-Vice President Joe Biden addresses the 2015 HRC National Dinner - YouTube
Ben Carson defends citing Holocaust in argument on gun control.
Republican presidential candidate Ben Carson has waded deeper into a row over gun control by claiming that Jewish people in Nazi Germany might have been able to prevent the Holocaust if they had been armed.
Related:Outrage and disbelief after Ben Carson comments on Oregon shooting
Carson was quizzed on CNN over comments in his new book, A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties, which cites Nazi Germany to argue that the right to bear arms should not be curtailed.
CNN's Wolf Blitzer asked him: ''Just clarify, if there had been no gun control laws in Europe at that time, would six million Jews have been slaughtered?''
Carson replied: ''I think the likelihood of Hitler being able to accomplish his goals would have been greatly diminished if the people had been armed '... I'm telling you that there is a reason that these dictatorial people take the guns first.''
The former neurosurgeon is currently polling in second place in the race to become the Republican presidential candidate, behind front-runner Donald Trump.
Straight Outta Carson: We look at six of Ben Carson's most controversial statementsHis comments risk further fuelling the outrage that greeted recent remarks on the killing of nine people last week at Umpqua Community College in Oregon.
Related:Rupert Murdoch implies Obama is not 'real black president' in tweet praising Ben Carson
Asked how he would have responded, following reports that Christopher Harper-Mercer had asked victims whether they were Christian before killing them, Carson told Fox News: ''Not only would I probably not cooperate with him, I would not just stand there and let him shoot me.
''I would say, 'Hey guys, everybody attack him. He may shoot me, but he can't get us all.'''
However, Carson's gung-ho attitude was undermined by a story he shared with SiriusXM radio on Thursday, in which he recalled being threatened with a gun in a Popeyes chicken restaurant in Baltimore on an unspecified date.
''The guy comes in, put the gun in my ribs,'' Carson said. ''And I just said, 'I believe that you want the guy behind the counter' '... I redirected him.''
What happened to the person behind the counter was not elaborated upon. Baltimore police department said ''there was not enough info to identify a police report in reference to the incident '... Date and location would assist in locating report.''
Outspoken remarks by Carson, who has no experience of serving in government, have won him both praise '' along with a boost in the polls '' and condemnation.
After he called for kindergarten teachers to be armed, Erica Lafferty '' whose mother, school principal Dawn Hochsprung, was one of 26 people killed in the 2012 Sandy Hook massacre '' told the Guardian: ''Ben Carson's comments are insensitive to anyone who has ever been personally affected by gun violence.
''My mother was an elementary school principal, not a marine who signed up to be on the frontlines of a shootout.''
Carson also provoked a backlash when he said last month that he ''absolutely would not agree'' with a Muslim becoming US president.
VIDEO-Networks Assail 'Controversial' Rupert Murdoch for 'Crossing the Line' | MRCTV
[See NewsBusters for more.] ABC, NBC and CBS immediately pounced on a tweet by Ruper Murdoch in which the Fox News chairman suggested that Ben Carson would be America's first ''real'' black president. These same networks stayed silent this week after a major college professor smeared Carson as a ''coon.'' On Thursday, Good Morning America's Amy Robach opened the program by blasting, ''New overnight: Crossing the line? Billionaire Rupert Murdoch sparking a firestorm, saying Ben Carson would be America's first real black president.'' Co-host George Stephanopoulos highlighted ''that controversial comment by the billionaire behind Fox News.''
VIDEO-Megyn Kelly Hits Back at Liberal Feminists for their Double Standard in Treatment of Conservatives | MRCTV
See more in the cross-post on the NewsBusters blog.
During a fascinating and wide-ranging interview on the Wednesday edition of Charlie Rose's PBS show, Fox News Channel (FNC) host Megyn Kelly pushed back at liberal feminists and the very label for their complete double standard in the treatment of conservative and pro-life women (and specifically Sarah Palin).
The issue came up when Rose asked Kelly if she was an advocate like many of his personal friends in that they're ''constantly making us and helping us remember how much we need to do with respect to women and equal pay.''
[See NewsBusters for more.] Despite a four-hour running time, NBC's Today on Thursday skipped any mention of the latest on the Hillary Clinton e-mail scandal. CBS This Morning managed 25 seconds. ABC's Good Morning America offered 27 seconds. GMA's Dan Harris highlighted an Associated Press report claiming, ''Clinton's private e-mail server was the target of attempted cyber attacks from China, South Korea and Germany.'' He added, ''A contractor hired to protect Clinton's private information warned that her server was vulnerable.''
VIDEO-Two suicide bombers believed to be behind Turkey blasts-Turkey PM | Reuters.com
Pro-government protesters hold pictures of Syrian President Bashar al-Assad and his late father, Hafez al-Assad, during a rally in Damascus, Syria, on March 18, 2011. Bashar al-Assad has ruled Syria since 2000, when his father passed away following 30 years in charge. An anti-regime uprising that started in March 2011 has spiraled into civil war. The United Nations estimates more than 220,000 people have been killed.
Syria's civil war in pictures
Syria's civil war in pictures
An injured man lying in the back of a vehicle is rushed to a hospital in Daraa, south of Damascus, on March 23, 2011. Violence flared in Daraa after a group of teens and children were arrested for writing political graffiti. Dozens of people were killed when security forces cracked down on demonstrations.
Syria's civil war in pictures
Anti-government protesters demonstrate in Daraa on March 23, 2011. In response to continuing protests, the Syrian government announced several plans to appease citizens.
Syria's civil war in pictures
Syrian children walk over bricks stored for road repairs during a spontaneous protest June 15, 2011, at a refugee camp near the Syrian border in Yayladagi, Turkey.
Syria's civil war in pictures
Jamal al-Wadi of Daraa speaks in Istanbul on September 15, 2011, after an alignment of Syrian opposition leaders announced the creation of a Syrian National Council -- their bid to present a united front against al-Assad's regime and establish a democratic system.
Syria's civil war in pictures
Syria's civil war in pictures
Syria's civil war in pictures
Syrian refugees walk across a field in Syria before crossing into Turkey on March 14, 2012.
Syria's civil war in pictures
An injured man gets treated in a Damascus neighborhood on April 3, 2012.
Syria's civil war in pictures
Syria's civil war in pictures
Rebel fighters with the Free Syrian Army capture a police officer in Aleppo, Syria, who they believed to be pro-regime militiaman on July 31, 2012. Dozens of officers were reportedly killed as rebels seized police stations in the city.
Syria's civil war in pictures
A Free Syrian Army fighter runs for cover as a Syrian Army tank shell hits a building across the street during clashes in the Salaheddine neighborhood of central Aleppo on August 17, 2012.
Syria's civil war in pictures
Family members mourn the deaths of their relatives in front of a field hospital in Aleppo on August 21, 2012.
Syria's civil war in pictures
A Syrian man carrying grocery bags dodges sniper fire in Aleppo as he runs through an alley near a checkpoint manned by the Free Syrian Army on September 14, 2012.
Syria's civil war in pictures
Free Syrian Army fighters are reflected in a mirror they use to see a Syrian Army post only 50 meters away in Aleppo on September 16, 2012.
Syria's civil war in pictures
Syria's civil war in pictures
A Syrian rebel walks inside a burnt section of the Umayyad Mosque in Aleppo hours before the Syrian army retook control of the complex on October 14, 2012.
Syria's civil war in pictures
Relatives of Syrian detainees who were arrested for participating in anti-government protests wait in front of a police building in Damascus on October 24, 2012. The Syrian government said it released 290 prisoners.
Syria's civil war in pictures
An Israeli tank crew sits on the Golan Heights overlooking the Syrian village of Breqa on November 6, 2012. Israel fired warning shots toward Syria after a mortar shell hit an Israeli military post. It was the first time Israel fired on Syria across the Golan Heights since the 1973 Yom Kippur War.
Syria's civil war in pictures
Rebels celebrate next to the remains of a Syrian government fighter jet that was shot down at Daret Ezza, on the border of the provinces of Idlib and Aleppo, on November 28, 2012.
Syria's civil war in pictures
Smoke rises in the Hanano and Bustan al-Basha districts in Aleppo as fighting continues through the night on December 1, 2012.
Syria's civil war in pictures
The bodies of three children are laid out for identification by family members at a makeshift hospital in Aleppo on December 2, 2012. The children were allegedly killed in a mortar shell attack that landed close to a bakery in the city.
Syria's civil war in pictures
A father reacts after the deaths of two of his children in Aleppo on January 3, 2013.
Syria's civil war in pictures
A rebel fighter prepares the wires of a car-mounted camera used to spy on Syrian government forces while his comrade smokes a cigarette in Aleppo's Bab al-Nasr district on January 7, 2013.
Syria's civil war in pictures
Syrians look for survivors amid the rubble of a building targeted by a missile in the al-Mashhad neighborhood of Aleppo on January 7, 2013.
Syria's civil war in pictures
Rebels launch a missile near the Abu Baker brigade in Al-Bab, Syria, on January 16, 2013.
Syria's civil war in pictures
An aerial view shows the Zaatari refugee camp near the Jordanian city of Mafraq on July 18, 2013.
Syria's civil war in pictures
Syria's civil war in pictures
The U.N. Security Council passes a resolution September 27, 2013, requiring Syria to eliminate its arsenal of chemical weapons. Al-Assad said he would abide by the resolution.
Syria's civil war in pictures
Residents run from a fire at a gasoline and oil shop in Aleppo's Bustan Al-Qasr neighborhood on October 20, 2013. Witnesses said the fire was caused by a bullet from a pro-government sniper.
Syria's civil war in pictures
Syrian children wait as doctors perform medical checkups at a refugee center in Sofia, Bulgaria, on October 26, 2013.
Syria's civil war in pictures
An injured man is helped following an airstrike in Aleppo's Maadi neighborhood on December 17, 2013.
Syria's civil war in pictures
Residents wait to receive food aid distributed by the U.N. Relief and Works Agency at the besieged al-Yarmouk camp, south of Damascus, on January 31, 2014.
Syria's civil war in pictures
A man holds a baby who was rescued from rubble after an airstrike in Aleppo on February 14, 2014.
Syria's civil war in pictures
A U.S. ship staff member wears personal protective equipment at a naval airbase in Rota, Spain, on April 10, 2014. A former container vessel was fitted out with at least $10 million of gear to let it take on about 560 metric tons of Syria's most dangerous chemical agents and sail them out to sea, officials said.
Syria's civil war in pictures
A Free Syrian Army fighter fires a rocket-propelled grenade during heavy clashes in Aleppo on April 27, 2014.
Syria's civil war in pictures
A giant poster of al-Assad is seen in Damascus on May 31, 2014, ahead of the country's presidential elections. He received 88.7% of the vote in the country's first election after the civil war broke out.
Syria's civil war in pictures
Rebel fighters execute two men on July 25, 2014, in Binnish, Syria. The men were reportedly charged by an Islamic religious court with detonating several car bombs.
Syria's civil war in pictures
Syria's civil war in pictures
Syria's civil war in pictures
Medics tend to a man's injuries at a field hospital in Douma after airstrikes on September 20, 2014.
Syria's civil war in pictures
A long-exposure photograph shows a rocket being launched in Aleppo on October 5, 2014.
Syria's civil war in pictures
A man gives medical assistance as two wounded children wait nearby at a field hospital in Douma on February 2, 2015.
Syria's civil war in pictures
Rebel fighters dig caves in the mountains for bomb shelters in the northern countryside of Hama on March 9, 2015.
Syria's civil war in pictures
Nusra Front fighters inspect a helicopter belonging to pro-government forces after it crashed in the rebel-held Idlib countryside on March 22, 2015.
Syria's civil war in pictures
A Syrian boy receives treatment at a local hospital following an alleged chlorine gas attack in the Idlib suburb of Jabal al-Zawia on April 27, 2015.
Syria's civil war in pictures
A Syrian child fleeing the war gets lifted over fences to enter Turkish territory illegally near a border crossing at Akcakale, Turkey, on June 14, 2015.
Syria's civil war in pictures
A refugee carries mattresses as he re-enters Syria from Turkey on June 22, 2015, after Kurdish People's Protection Units regained control of the area around Tal Abyad, Syria, from ISIS.
Syria's civil war in pictures
A man's body lies in the back of van as people search for the injured after airstrikes allegedly by the Syrian government on a market in a rebel-held Eastern Ghouta town on August 31, 2015.
Syria's civil war in pictures
A sandstorm blows over damaged buildings in the rebel-held area of Douma, east of Damascus, on September 7, 2015.
VIDEO-Anti-government protest in Beirut turns violent | Reuters.com
Anita Freeman says she suffers from post traumatic stress disorder after watching her sister's suffering from terminal cancer. She's very much in favour of California's move to make assisted suicide legal from January. The new law will allow the prescription of drugs to end a patient's life if two doctors agree that patient has six months or less to live and is mentally competent. Anita Freeman says it's too late for her sister, Elizabeth Jane, but now others need not suffer the same lingering death. (SOUNDBITE)(English) ANITA FREEMAN, SUPPORTER OF RIGHT TO DIE BILL, SAYING: "If we would have had a law that allowed aid in dying we could have spared her a horrific death which then spilled over into the rest of the family being horrified, watching her suffer like she did. She was only 66." California's right to die bill was signed into law on Monday by Governor Jerry Brown. He put this statement on his official website explaining that he would want to consider all the options in the face of a prolonged and painful end. Yet there are those keen to stop the new legislation coming into force. Luis Alvaro is state director for Californians Against Assisted Suicide. (SOUNDBITE)(English) LUIS ALVARO, STATE DIRECTOR FOR CALIFORNIANS AGAINST ASSISTED SUICIDE, SAYING: "We don't see suicide pills as being medication. What we see is suicide pills being an irreversible drug that, surprisingly is not available for those people that the law already requires them, the state, to take their lives but will now be readily available for those patients who want to consider taking their lives or may feel pressured into taking their lives." California's new legislation follows nationwide publicity over the case of Brittany Maynard. The 29-year-old brain cancer patient had move to Oregon to take advantage assisted suicide law there. California becomes only the fifth state to allow medically-aided deaths.
VIDEO-Shock over arrest of ex-UN official | Reuters.com
Former United Nations General Assembly president John Ashe appeared before a New York court late on Tuesday after his arrest on corruption allegations. A federal judge set his bail at $1 million on condition of house arrest despite prosecutors fears he could flee. Ashe's lawyer says he intends to assert immunity and fight the charges. Manhattan U.S. Attorney Preet Bharara says Ashe was part of a major scandal. (SOUNDBITE)(English) MANHATTAN U.S. ATTORNEY PREET BHARARA SAYING: "The complaint alleges that four defendants representing business interests in China paid at least $1.3 million in bribes to a man who was then president of the United Nations General Assembly and the permanent representative to the U.N. from Antigua. His name is John Ashe." Ashe, seen here in file footage, is charged along with another former U.N official, Francis Lorenzo. Billionaire Macau property developer Ng Lap Seng, his assistant Jeff Yin and two executives of a New York non-profit organisation have also been charged. The U.N.'s current General Assembly President says he's deeply shocked by the allegations. (SOUNDBITE)(English) MOGENS LYKKETOFT, CURRENT UNITED NATIONS GENERAL ASSEMBLY PRESIDENT, SAYING: "I can only agree totally with the Secretary-General when he said that, if proven, this is an attack at the very heart of the integrity of the United Nations." U.S. prosecutors say more charges could follow as authorities examine whether corruption was business as usual at the U.N.
VIDEO-EPA spends millions on military-style weapons, watchdog group reports - Washington Times
The Environmental Protection Agency has spent millions of dollars over the last decade on military-style weapons to arm its 200 ''special agents'' to fight environmental crime.
Among the weapons purchased are guns, body armor, camouflage equipment, unmanned aircraft, amphibious assault ships, radar and night-vision gear and other military-style weaponry and surveillance activities, according to a new report by the watchdog group Open the Books.
''Protecting the environment just got real. With millions of dollars spent on military style weaponry, the EPA is now literally ensconced with all institutional force,'' said Adam Andrzejewski, founder of Open the Books and the author of the report.
PHOTOS: See Obama's biggest White House fails
''Our report discovered that when the EPA comes knocking they are armed with a thousand lawyers, arrest/criminal data, credit, business and property histories, plus a 'Special Agent' with the latest in weaponry and technology,'' Mr. Andrzejewski added.
The agency spends nearly $75 million each year for criminal enforcement, including money for a small militia of 200 ''special agents'' charged with fighting environmental crime.
Congress granted police powers to the EPA in 1988, during the Reagan administration.
PHOTOS: 13 Things Liberals Want To Ban
The special agent ''enforces the nation's laws by investigating cases, collecting evidence, conducting forensic analyses and providing legal guidance to assist in the prosecution of criminal conduct that threatens people's health and the environment,'' according to the EPA's website.
The EPA estimates that each Special Agent costs taxpayers $216,000 per year in salary, travel, equipment, training and other expenses, according to the report.
The EPA's military weapons spending is just one example of the agency's questionable purchases highlighted in the 40-page report.
Open the Books, a nonpartisan and nonprofit group based in Illinois, scanned tens of thousands of the agency's spending contracts totaling more than $93 billion from 2000 to 2014.
Among the findings were hundreds of millions of dollars on high-end office furnishings, sports equipment and ''environmental justice'' grants to raise awareness of global warming.
The report also reveals that seven of 10 EPA employees make more than $100,000 a year and more than 12,000 of its 16,000 employees were given bonuses last year despite budget cuts.
The EPA also employs more than 1,000 attorneys, making it one of the largest law firms in the country.
The agency also sent over $50 million since 2000 to international organizations, including groups in Mexico and China.
VIDEO-'Why hasn't it worked?' State Dept dodges questions on failed rebel training program - YouTube
On Oct. 7, 1938, Judy Garland stepped onto an MGM soundstage to record the Harold Arlen-Yip Harburg classic "Over the Rainbow" for the enduring film "The Wizard of Oz."
To mark the occasion, PBS News Hour anchor Jeffrey Brown sat down with composer Rob Kapilow at the Signature Theatre in Arlington, VA, to find out "what makes the song 'Over the Rainbow' an indelible classic?"
Exclusive: Judy Garland Musical to Follow the Yellow-Brick Road to Broadway
Kapilow goes in depth to explore the emotions and subtext behind the music that help "explain why we love the story of a girl caught yearning for both home and adventure."
He explains, "We start off with this big leap. This is a full octave leap. That's a big leap for a popular song. In fact, producers were worried that nobody would buy the song because it would be too hard to sing this opening leap.
"Now, this leap isn't just a big leap musically. It's a leap between two different worlds and two parts of the voice. The first note is kind of low down there in chest voice. It's Dorothy's troubled reality. It's Kansas, aridity, no flowers. It's the black and white of the beginning of the film.
"So, this is Kansas. The upper note, it is more ethereal. It's like '-- it's where she wants to escape to. It's Oz. It's over the rainbow.
So, these two notes, Kansas and Oz, are going to turn out to be the key to the whole song, but you won't get their final meaning until the last notes of the song."
See the segment in full below. It's a must-watch for any "Oz" fan.
VIDEO-Unbeknownst to Clinton, IT firm had emails stored on cloud; now in FBI's hands - Allen West Republic
Email FeaturedPublished on October 8th, 2015 | by Allen West Republic
As Reported By McClatchy DC:
The firm, Datto Inc., said Wednesday that it turned over the contents of its storage to the FBI on Tuesday.
A Republican Senate committee chairman, Wisconsin Sen. Ron Johnson, also has asked the firm to provide the committee copies of any data from Clinton's account still in its possession.
There were conflicting accounts as to whether the developments could lead to retrieval of any of Clinton's more than 31,000 personal emails, which she said she deleted from her private server upon turning over her work-related emails to the State Department, at its request, in December 2014.
Congressional Republicans have voiced skepticism as to whether the 30,940 business emails that the Democratic presidential candidate handed over represented all of those related to her position as secretary of state. Clinton has said her lawyers carefully pruned them.
The FBI is separately investigating whether Clinton's arrangement put classified information at risk but has yet to characterize it as a criminal inquiry.
CONTINUE READING, THERE IS MORE ON THIS STORY
Unbeknownst to Clinton, IT firm had emails stored on cloud; now in FBI's hands | McClatchy DC
Tags:Cloud back up on Hillary emails, Datto Inc, Fbi has cloud emails, Hillary Clinton Emails
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"Three nights before he came to Las Vegas I told my husband, 'Oh I have a dream, you cannot imagine, I saw Mr. Trump in my dreams,' and I saw him, like I had the opportunity to give him a hug," Myriam Witcher told CNN's Brooke Baldwin on Friday.
Witcher had repeatedly written on Trump's Facebook page to express her support, but said the Trump campaign never reached out to her before the event in Las Vegas.
Witcher took to the stage after Trump noticed she was holding an issue of People Magazine that features him and his family on the cover and Witcher exclaimed, "I am Hispanic and I vote for Mr. Trump. We vote for Mr. Trump!"
She said Friday that she was not at all concerned about Trump's plan to deport all estimated 11 million undocumented immigrants living in the U.S. or his comments that undocumented Mexican immigrants are "rapists" and "killers."
"It doesn't bother me at all. Mr. Trump he is 100% right," she said. "He is our perfect man. He is my perfect man ... everything he says is absolutely right."
She said she was motivated to support Trump after reading his books and hearing about his charity work.
"He is our man sent from heaven. He's a very very beautiful human being, beautiful heart, a lot of love and compassion," she said.
VIDEO-Ben Carson claims Jewish people might have stopped Holocaust if they had guns | US news | The Guardian
Ben Carson defends citing Holocaust in argument on gun control.
Republican presidential candidate Ben Carson has waded deeper into a row over gun control by claiming that Jewish people in Nazi Germany might have been able to prevent the Holocaust if they had been armed.
Related:Outrage and disbelief after Ben Carson comments on Oregon shooting
Carson was quizzed on CNN over comments in his new book, A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties, which cites Nazi Germany to argue that the right to bear arms should not be curtailed.
CNN's Wolf Blitzer asked him: ''Just clarify, if there had been no gun control laws in Europe at that time, would six million Jews have been slaughtered?''
Carson replied: ''I think the likelihood of Hitler being able to accomplish his goals would have been greatly diminished if the people had been armed '... I'm telling you that there is a reason that these dictatorial people take the guns first.''
The former neurosurgeon is currently polling in second place in the race to become the Republican presidential candidate, behind front-runner Donald Trump.
His comments risk further fuelling the outrage that greeted recent remarks on the killing of nine people last week at Umpqua Community College in Oregon.
Related:Rupert Murdoch implies Obama is not 'real black president' in tweet praising Ben Carson
Asked how he would have responded, following reports that Christopher Harper-Mercer had asked victims whether they were Christian before killing them, Carson told Fox News: ''Not only would I probably not cooperate with him, I would not just stand there and let him shoot me.
''I would say, 'Hey guys, everybody attack him. He may shoot me, but he can't get us all.'''
However, Carson's gung-ho attitude was undermined by a story he shared with SiriusXM radio on Thursday, in which he recalled being threatened with a gun in a Popeyes chicken restaurant in Baltimore on an unspecified date.
''The guy comes in, put the gun in my ribs,'' Carson said. ''And I just said, 'I believe that you want the guy behind the counter' '... I redirected him.''
What happened to the person behind the counter was not elaborated upon. Baltimore police department said ''there was not enough info to identify a police report in reference to the incident '... Date and location would assist in locating report.''
Outspoken remarks by Carson, who has no experience of serving in government, have won him both praise '' along with a boost in the polls '' and condemnation.
After he called for kindergarten teachers to be armed, Erica Lafferty '' whose mother, school principal Dawn Hochsprung, was one of 26 people killed in the 2012 Sandy Hook massacre '' told the Guardian: ''Ben Carson's comments are insensitive to anyone who has ever been personally affected by gun violence.
''My mother was an elementary school principal, not a marine who signed up to be on the frontlines of a shootout.''
Carson also provoked a backlash when he said last month that he ''absolutely would not agree'' with a Muslim becoming US president.
VIDEO-Ebola nurse Pauline Cafferkey 'in serious condition' - BBC News
Image caption Pauline Cafferkey previously spent a month in the specialist isolation unit at the Royal Free Hospital in London A Scottish nurse who contracted Ebola in Sierra Leone last year is in a "serious condition" after being readmitted to an isolation unit in London.
NHS Greater Glasgow and Clyde confirmed that the virus is still present in Pauline Cafferkey's body after being left over from the original infection.
She is not thought to be contagious.
The 39-year-old has been flown back to the isolation unit at the Royal Free Hospital in London.
Bodily tissues can harbour the Ebola infection months after the person appears to have fully recovered.
Ms Cafferkey, from Cambuslang in South Lanarkshire, spent almost a month in the unit at the beginning of the year after contracting the virus in December 2014.
Media captionJane Dreaper reports as Ebola nurse Pauline Cafferkey is readmitted to hospitalWe will be taking your questions on Ebola on BBC News Channel today at 15:30 BST. Email haveyoursay@bbc.co.uk with your queries.
NHS Greater Glasgow and Clyde (NHSGGC) said she had been admitted to the Queen Elizabeth University Hospital in Glasgow on Tuesday after feeling unwell and was treated in its infectious diseases unit.
She was then transferred to the Royal Free Hospital in the early hours of Friday morning due to an "unusual late complication" in her illness.
Dr Emilia Crighton, NHSGGC director of public health, said: "Pauline's condition is a complication of a previous infection with the Ebola virus.
"The risk to the public is very low. In line with normal procedures in cases such as this, we have identified a small number of close contacts of Pauline's that we will be following up as a precaution."
Government sources have described her transfer to the specialist unit as a "highly precautionary process".
Background by Stuart Nicolson, BBC Scotland News
Colleagues who worked with her have spoken of Ms Cafferkey's dedication and enthusiasm for her role at the Ebola Treatment Centre in Kerry Town.
And in extracts from her diary published by the Scotsman newspaper, she described how the work she was doing had quickly come to feel like a "normal part of life".
She wrote: "My nice community nursing job in Blantyre is far removed from this but at the moment this seems a lot more real. The dreams that I do remember always seem to have an Ebola theme, it seems to be all consuming."
During the third week of her diary, she described "an awful shift" during which she had to tell a young boy, whose father had died from Ebola, that the virus had also killed his mother and sister.
"His mother had seen her daughter die in the bed across from her that morning and she died a few hours later," she wrote.
Read more here
Dr Ben Neuman, a virologist from the University of Reading, told BBC Radio's Good Morning Scotland programme that the outlook for Ms Cafferkey was good and it was unlikely the virus remained infectious.
He said: "Once the virus is removed from the blood once, it tends to retreat into the hard-to-access components of the body. It'll hide in places like the back of your eye or breast milk."
He said the effects of the virus on the body could last for up to two years, although it was difficult to know how long it could actually persist.
Image copyrightGetty ImagesHe added: "The nice news here is that she's beaten the virus once so she can probably beat it again.
"The odds are that she has actually inherited a lucky set of genes and these are probably what protected her the first time and probably what will keep her safe the second time regardless of any treatment. The outlook's good."
Ebola is passed on through bodily fluids. It is not transmitted through casual contact.
Analysis by James Gallagher, health editor, BBC News website
Finding the virus in Ebola survivors months after recovering is not unheard of.
Previous outbreaks have shown the virus can survive in semen and it was found in the eye of a US doctor two months after recovering.
This can pose health problems for the patient, but is there a risk of spreading the virus?
Men are advised to use condoms indefinitely until more is known.
But there are now so many survivors in West Africa - around 13,000 - that if there was a major risk then we would know about it.
Liberia did have a mini Ebola flare-up after going more than 40 days without a case.
Ebola virus persisting in survivors is one possible explanation.
Experts say there will have to be monitoring for Ebola flare-ups for years after the epidemic is over.
What are the risks of Ebola recurring?
Last week Ms Cafferkey, who works at the Blantyre Health Centre, was in London receiving an award at the Pride of Britain ceremony which recognised the risks aid workers took with their own health.
There are not thought to be any concerns about contact she had with people at the event but health officials in Scotland are focusing on who she had seen since her return home.
Ms Cafferkey contracted Ebola while working as a volunteer with Save the Children at a treatment centre in Kerry Town, in Sierra Leone.
She was diagnosed on 29 December last year, after returning to Glasgow via London.
Image copyrightGetty ImagesImage caption Ms Cafferkey contracted Ebola while working as a volunteer in Sierra Leone last year Her temperature had been tested seven times before she flew from Heathrow to Glasgow and she was cleared to travel, before later falling ill.
She was placed in an isolation unit at Glasgow's Gartnavel Hospital after becoming feverish, before being transferred by an RAF Hercules plane to London on 30 December.
She was then transferred to the specialist isolation unit at the Royal Free.
After a few days Ms Cafferkey's condition began to deteriorate, with the hospital announcing she had become critically ill on 4 January.
After leaving hospital later the same month, Ms Cafferkey said she was "very happy to be alive" and was looking forward to returning to "normal life".
An investigation by Save the Children later concluded that the nurse had probably caught Ebola by wearing a visor instead of goggles while treating patients.
Image copyrightSPLSymptoms include high fever, bleeding and central nervous system damageSpread by body fluids, such as blood and salivaFatality rate can reach 90% - but current outbreak has mortality rate of about 55%Incubation period is two to 21 daysThere is no proven vaccine or cureSupportive care such as rehydrating patients who have diarrhoea and vomiting can help recoveryFruit bats, a delicacy for some West Africans, are considered to be virus's natural hostAt the time, Dr Michael Jacobs, from the Royal Free's infectious diseases team, said Ms Cafferkey had completely recovered and was "not infectious in any way".
NHS Lanarkshire said she had begun a phased return to work in mid-March, and had last been at work on 1 October.
Consultant in Public Health David Cromie said: "Pauline was well while at work and there is no wider public health risk for patients treated by her or her staff colleagues.
"In line with normal procedures in cases such as this, a small number of close contacts of Pauline have been identified and will be followed up as a precaution.
"Together with Pauline's colleagues, our thoughts are with Pauline and we wish her a full speedy recovery."
Deadliest outbreak
Image copyrightGetty ImagesWest Africa's Ebola outbreak was first identified in March 2014 - within hours doctors set up field hospitals to treat the sick.Aid workers from countries across the world, including the UK, Germany, France, Italy, the US and Spain, volunteered to help.More than 11,000 people have died from the virus since the epidemic erupted.Why did we lose control of the Ebola virus in 2014?
Ms Cafferkey had visited Mossneuk Primary School in East Kilbride the day before she fell ill, where she gave a presentation at an assembly to thank the school for raising money.
Health experts have offered reassurance to parents, stressing that Ebola cannot be spread through ordinary social contact.
The World Health Organisation admits not much is known about the long-term implications after having Ebola.
Some survivors of the virus have had eye and joint problems, as well as ongoing fatigue.
James Gallagher, Health Editor, BBC News website will be taking your questions on Ebola on BBC News Channel today at 15:30 BST.
Email haveyoursay@bbc.co.uk with your comments and stories.
Please include a contact number if you are willing to speak to a BBC journalist. You can also contact us in the following ways:
WhatsApp: +44 7525 900971Send pictures/video to yourpics@bbc.co.ukUpload your pictures / video hereTweet: @BBC_HaveYourSaySend an SMS or MMS to 61124 or +44 7624 800 100
VIDEO-Megyn Kelly Analyzes 'Disturbing New Twist' Involving 'Clock Kid' Ahmed Mohamed's Father | Video | TheBlaze.com
On Wednesday night, Fox News host Megyn Kelly reported on a ''disturbing new twist'' in the story of Ahmed Mohamed, the Texas teenager who became an overnight celebrity after officials at his high school took precautions and treated his homemade clock as a possible hoax bomb.
Fox News
Kelly reported that a controversial 9/11 conspiracy theory Facebook post from Mohamed's father, Mohamed Elhassan Mohamed, first caught her attention.
Reporter Trace Gallagher said it appears the dad operates two different Facebook pages. On his personal page, he reported, the elder Mohamed wrote about how ''killing without rightness'' is prohibited by Islam. But there's also apparently an Arabic Facebook page that also appears to be run by Elhassan Mohamed.
''There's also an Arabic Facebook page for the National Reform Party, a political party started by Elhassan Mohamed, bearing a similar profile picture and address,'' Gallagher explained. ''Only, this webpage is much more active and the tone is very different, including a 14-minute conspiracy theory clip on the 9/11 terrorist attacks and a post that shows the smoking World Trade towers, describing as a U.S.-sponsored hoax to launch a world war against Islam and Muslims.''
Facebook
You can watch the video in question here.
Gallagher also noted that Elhassan Mohamed has ''repeatedly run for president of Sudan despite living near Dallas.''
The Irving District maintains it has information that could provide crucial context to the now infamous clock incident, but are unable to speak out without the permission of Mohamed's parents because he is a minor.
More from ''The Kelly File'' below:
'--
VIDEO-Ben Carson Takes Aim at 'PC Police Who Say Every Lifestyle Is Exactly of the Same Value' | TheBlaze.com
Fresh off of his contentious debate about abortion with the women of ''The View,'' presidential candidate Dr. Ben Carson touted traditional families on Wednesday, saying that ''intact traditional families with traditional intact values do much better in terms of raising children.''
Carson, a retired neurosurgeon running for the Republican nomination, made the statement after radio host David Webb said that single-parent birthrates are an ''epidemic'' and asked the candidate how the issue should be addressed.
''Well, the first thing we have to do is be able to talk about it. We've got to stop paying attention to the PC police who say every lifestyle is exactly of the same value,'' Carson said. ''No, it's not of the same value. It is very clear that intact traditional families with traditional intact values do much better in terms of raising children.''
Ben Carson, Republican 2016 U.S. presidential candidate, speaks during The Family Leadership Summit in Ames, Iowa, U.S., on Saturday, July 18, 2015. (Daniel Acker/Bloomberg via Getty Images)
He said that it's important to ''stop pretending that everything is of equal value,'' before going on to repeat a statement that he made on ''The View'' about young women who have ''babies out of wedlock.''
''Most of the time their education ends with that first baby,'' Carson said. ''Those babies are four times as likely to grow up in poverty, end up in the penal system or the welfare system. I'm not making this stuff up.''
Listen to Carson discuss the family below:
(H/T: Mediaite)
VIDEO-Phoenix freeway shootings update: Attorneys for Leslie Merritt, Jr. plan to show lack of evidence - ABC15 Arizona
The German central bank has publicized a complete list with details on every bar of gold it possesses. The comprehensive document is meant to end speculation it may have been lying about the true amount it holds.
Dogged by various conspiracy theories, the Bundesbank on Wednesday issued an exhaustive list of all gold bars in its near 3,400-ton reserve of the metal to boost the central bank's standing as a guardian of stability.
The 2,300-page document revealed the status and location of the bars worth about 107 billion euros ($120.3 billion). Officials noted the list would be updated on an annual basis.
That means the Bundesbank has the second highest reserves of the precious metal behind the United States.
Nothing gone missing
Wednesday's tally showed that as of the end of 2014, 35 percent of the Bundesbank's holdings were at home in Frankfurt, 43 percent with the Fed in New York, 13 percent in London and 9 percent in Paris.
The lender underscored its intention to repatriate more bars and add them to those already stored in an underground vault in Frankfurt. It currently plans to have more than half of its gold stored domestically by 2020.
Throughout the decades, the German public had been skeptical about the true amount of the gold reserves, with suspicions being aggravated by questions about why Germany stored so much of its gold overseas.
In a book called "Bring Our Gold Home," for instance, author Peter Boehringer had long demanded the Bundesbank "must prove that the gold is there."
hg/jd (dpa, Reuters)
VIDEO-Spencer Stone, French Train Attack Hero, Stabbed in Sacramento - NBC News
Spencer Stone, one of three Americans who helped foil a terror attack on a French train in August, was stabbed after a fight in Sacramento on Wednesday night, police said.
Airman First Class Stone, 23, was in stable condition on Thursday, an Air Force spokesperson said. Police said he was stabbed more than once and was being treated for "non life-threatening but very significant injuries."
Stone was out with four friends '-- a male and three females '-- when he became involved in an argument with at least two men around 12:45 a.m. PT. in downtown Sacramento.
It appeared that a "verbal argument" ended up on the street and led to a physical confrontation, a Sacramento Police Department spokeswoman told NBC News.
Deputy Chief Ken Bernard of Sacramento Police described the incident as "an altercation between two groups of folks who were enjoying the nightlife. This was not related to terrorism in any way and we know it was not related to what happened in France."
Bernard said the two suspects '-- described as Asian males in white T-shirts and blue jeans '-- fled the scene in a late-model Toyota Camry.
Stone and two of his childhood friends, Alek Skarlatos and Anthony Sadler, received France's Legion d'Honneur in August for subduing suspected terrorist Ayooub El-Khazaani on a Paris-bound train.
Stone was stabbed with a box cutter during the bloody struggle, and needed surgery to reattach part of his hand.
Skarlatos tweeted Thursday morning: "Everybody send prayers out to the Stone family today."
Stone said after the attack he acted in the interest of "survival" '-- not only for himself but for everyone else on the train. "He seemed like he was willing to fight to the end '-- so were we," Stone said of El-Khazzani.
