May 2015 – Shall Not Be Questioned

Civil Rights Victory in Maine

The Senate has passed Constitutional Carry 21-14. It would still have to pass the house, but needless to say, this is a significant win for us. Maine would be the first New England state to pass Constitutional Carry (Vermont has always had it). That would put significant pressure on New Hampshire to get with the program! Let us hope that the House acts similarly.

We really need a large state, like Florida, Texas, Pennsylvania, or Ohio to bite. Pennsylvania will be an uphill battle. The Philadelphia contingent will object loudly, and we’d probably lose a number of suburban Republicans. At some point, I believe we will get it, but it’ll probably take a state like Florida or Texas making the leap first. Politicians are herd animals, for the most part. The trick is getting the herd moving in the right direction. That gets easier as more of the herd starts moving.

What Gun for Leaving America?

SayUncle asks an important question. Given that we’ll have federal reciprocity before too long, and given that states like New York limit magazine size, what gun would you want for carrying in hostile jurisdictions?

Because the proposed law allows someone to carry any “handgun,” you really don’t have to worry about state law to the contrary. While the law does not define “handgun” the term is defined under the Gun Control Act, so it would presumably follow that definition.

However, the proposed law does not include magazines or ammunition, which is a shame, because the Law Enforcement Officer Safety Act’s 2010 amendments allow carry of “ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act.” I suspect we can probably get that added at a later date, as it was for the LEOSA of 2004.

So to carry in all 50 states, youÂ have to be cognizant that New Jersey law bans carrying hollow point rounds. It is the only state in this country to do so. You’d have to load your magazine with ball or wadcutter ammo to be legal in New Jersey. I think that rounds like Corbon’s Pow’R BallÂ would be legal in New Jersey, so that might be a good option.

Obviously, you’d have to comply with magazine restrictions. I don’t believe there is any state that bans less than ten rounds (New York SAFE Acts 7 round rule was tossed by a federal judge). If I were looking for an “all state legal” carry gun post-National Reciprocity, I’d probably choose a Glock 43 or S&W M&P Shield. Bitter’s SIG 239 would also be a good option.

You’d probably want pretty good concealment, especially if you’re going to be a pioneer. The hostile states will no doubt ignore the law at first, and challenge it in court. You don’t want to be the person rotting in New Jersey state prison while your attorney argues the law is constitutional.

Police Encounters While Carrying

A lot of instructors, particularly those with a law enforcement background, will often tell you to extend officers the courtesy of telling them you’re armed if you ever get pulled over in a traffic stop. The advice typically includes offering your concealed carry license up along with your driver’s license. I think this is bad advice,Â because I read too many articles that sound like this one to believe it’s a good idea:

As he was getting his driverâ€™s license out, the officer noticed Olivaâ€™s concealed-carry license in his wallet.

â€œHe asked me if I had a concealed weapon in the car â€” he stopped abruptly,â€ Oliva said. â€œI got a really bad vibe about how he was handling this. Before I could get my concealed-carry license out, he ordered me to put my hands on the dash and lean forward.â€

The officer demanded to know where Oliva was carrying the pistol. He told him it was in a belly band on his right side. The officer reached in, under his shirt and seized the weapon.

Read the whole thing. It gets uglier from there. Never, ever keep your concealed carry license anywhere near your driver’s license. I keep mine hidden behind another card so it cannot be seen. This was begging for a negligent discharge. If officer friendly isn’t very good about keeping his booger hook off the bang switch, who do you think that errant round is goingÂ to severely injure or kill?

There’s never any good reason, other than being required to by law in some states, to disclose to an officer that you’re carrying. You never knowÂ whether you’ve been pulled over by an officer who’s going to handle everything professionally, or an officer who handles things in a dangerous and unprofessional manner like this one.

Due Process Issues with Gun Violence Restraining Orders

Bill of Rights

The National Journal has an article out touting our opponents latest tool in their quest to find issues they can use to increase the legal risk of gun ownership:

Jared Loughner’s parentsÂ knewÂ he could be dangerous. In the months before his shooting rampage in a Tucson parking lot, they took away his shotgun. They disabled his car at night. They advised him to seek mental health care. But none of those actions stopped Loughner from purchasing a handgun and taking a taxicab to an event where Rep. Gabrielle Giffords was speaking. He opened fire, killing six people and injuring 13 others, including Giffords.

“The parents identified this risk, andâ€”my goodnessâ€”they were taking some really bold steps to try to prevent what happened, but it wasn’t enough,” said Shannon Frattaroli, a gun violence prevention researcher at Johns Hopkins University. “They didn’t have enough tools at their disposal to prevent that new purchase.”

Read the whole thing. The root problem here is that we make it next to impossible to commit someone who’s exhibiting signs of being dangerously mentally ill. I wouldn’t trust Loughner with matches and gasoline either. This again is treating the Second Amendment as if it’s just some kind of second-classÂ right, not worthy of the protections afforded to other rights.

Adam Winkler, a constitutional law professor and Second Amendment expert at University of California (Los Angeles), and said the NRA’s concerns are largely unfounded. “At the end of the day it’s not a thorny issue,” Winkler said. “It’s not a Second Amendment violation to take away the guns of someone who is dangerous.”

“Although [GVROs] are often portrayed as allowing family members or jilted lovers to take someone’s gun away, these restraining orders must be issued by a judge,” he said. “A judge is not going to issue an order unless he has reason to believe that a person is dangerous.”

This seems naive to me. Given that we know many judges are hostile and dismissive ofÂ Second Amendment rights, I predict there will be a large number of judges who will act as a rubber stamp for these GVROs. Keep in mind, these can be issued without the accused having the opportunity to appear or be represented counsel in an adversarial hearing. This is not due process, which should be required to deny someone a fundamental right.

I get that California enacted stiff penalties for false accusers, but the penalties mean nothing. I don’t believe theÂ vast majority of false accusers willÂ ever be charged. It’ll be a case of “he said, she said,” and prosecutors will understandably be reluctant to take the cases to trial on flimsy evidence. Let us not also discount the general hostility big city prosecutors have toward gun ownership in the first place, who might not be too sympathetic to a person petitioning them to charge a person who made a false accusation that got his or her guns taken away.

GVROs will be abused. It’s naive to think otherwise. There are people out there who seriously believe that gun ownership is a sign of mental illness in and of itself, and sometimes you may have those people in your family. It should only be a matter of time before gun rights attorneys can find someone screwed by this law who will make a good plaintiff, and then we’ll see whether the 9th circuit and the Supreme Court take due process seriously when it comes to the Second Amendment.

But No One Wants to Ban Guns!

You could have fooled me:

There are reportsÂ thatÂ the former Curves storefront at 2105 N. Pollard Street, in a small strip mall along Lee Highway, will be occupied by a gun shop. We, the citizens of Arlington County, oppose a gun shop at this location. We are alarmed that the shop is within 2 blocks of an Arlington County Public School that houses the HB Woodlawn Program and Stratford Program. Further, two elementary schools (Taylor and Arlington Science Focus), are onlyÂ blocks away. FourÂ additional schools areÂ within 5 miles: Washington-Lee High School, St. Agnes, Key Elementary, andÂ Glebe Elementary.

This is not a new idea. We sounded the alarm back in 2008 that Barack Obama was a proponent of the five mile rule for gun shops when he was an Illinois Senator. The idea has surfaced here and there ever since. Certainly this standard would ban gun shops most everywhere, except for very rural areas, but that’s the idea. It’s a backdoor way of banning guns and crushing the Second Amendment. If they came out and said they wanted to ban all guns, they’d lose all public support. So they come out and say something that sounds not quite so radical to the average low-information voters, and presto! You have a gun ban without making it sound like you want to ban guns.

I think the Second Amendment, properly interpreted, would bar any law that discriminated against gun dealers in zoning matters. It would not bar general zoning rules, such as those which distinguish between residential and commercial properties, but it would bar laws and ordinances clearly meant to frustrate the operation of businesses, rather than serving a legitimate government interest.

Much like the government must be neutral on matters of speech, so to must it be neutral on matters of gun ownership, including the right to sell firearms. The Second Amendment has to mean there is a right to sell firearms, albeit one subject to regulation according to Heller. You can find a lot of weak and lazy thinking about this on the other side in this area, such as this bit of commentary about a Minnesota car dealer that tried to have a gun giveaway with the purchase of a new car:

The dealer made claims about this being about the second amendment but the last time I checked there was nothing about a right to give guns away in a business deal. He also said callers were mean. I wonder if he means that the callers were insistent and emphatic in their opposition to the business deal.

When we’re “insistent and emphatic,” we’re “bullies.” When they do it, it’s fine. But let us not dwell on their rank hypocrisy, and get to the meat. In this case, since it was private pressure on the dealer that caused him to cancel the giveaway, the Second Amendment doesn’t apply here. The Bill of Rights only constrains government action, and not private action.

But if the Second Amendment is to be treated as other fundamental rights are treated, there is a presumption that the government needs to have a compelling interest, and the means the government uses to further that interest are the least intrusive method available. That’s strict scrutiny. Even intermediate scrutiny, if applied correctly by the courts (which it has not been in most cases) requires there to be an “important” government interest, where the law, ordinance, or regulation is “substantially related” to the promotion of that interest.

Now, let’s take a look at the case of a dealer giving away a gun through a federally licensed dealer. First, what government interest can we identify? “Reducing the number of guns on the street” is not an interest in light of gun ownership being a right. Keeping guns out of the hands of violent criminals is probably a compelling government interest, but since the person receiving it will have to undergo a federally mandated background check, that governmental interest is already at work here. They fail completely at the governmental interest part, whether you apply strict or intermediate scrutiny. The government can have no legitimate interest in reducing gun ownership levels, even if one were to accept the argument that reducing gun ownership in general reduces their availability to violent criminals. That would not be “narrowly tailored” or “substantially related.”

What about the ridiculous “not near a school rule?” HellerÂ suggests that the government has a compelling interest in keeping firearms out of schools, since they are among the restrictions the Court said were “presumptively lawful.” Keeping guns out of the hands of children might be another compelling interest. But again, federally licensed dealers are prohibited from selling firearms to children. States can presumptively ban guns in schools, according to Heller, butÂ would a ban on gun shops within 5 miles or even 1000 feet of a school be “narrowly tailored?” What interest would it be “substantially related” to? Again, by either strict or intermediate scrutiny, if applied correctly, these regulations do not pass constitutional muster. Such a law, if applied in the First Amendment context, would clearly be ruled “over broad” by the courts.

You will undoubtedly see more arguments along these lines, and it’s important to know how to take them apart and refute them. Make the other side look the uneducated fools. I don’t honestly blame them for summarily dismissing how we treat rights in this country, because their only hope left is to marginalize the Second Amendment, and somehow make it an outlying right. We should perhaps feel lucky they are so very bad at making those arguments.

UPDATE: See this map showing how five mile rule would work in Houston. How is this not a gun ban? “You can still own them. You just can’t really buy them, except for that one shop out in the middle of the desert that’s only open in the evenings. Only paranoid rednecks think the gun violence prevention movement is really a gun ban movement in disguise.”

Memorial Day 2015

Bitter is in Oklahoma for a family emergency, so I’m on my own this memorial day. I saw this meme from someone onÂ Facebook, and boy does Facebook need it:

MemorialDayVeteransMeme

I never really used to care about the distinction until I got into genealogy. As is the case for most families, I have several soldiers in my tree who died in combat. For most of them, that was the end of their family tree. We remember the surviving veterans because we’re all descended from them, but those killed in action tend to be cousins, uncles, and sometimes even aunts. Most of the time I try to do thorough research on these folks when I find them, as if they were my ancestors. They deserve it, and they never had the opportunity to have descendants of their own that will care decades or centuries later because their lives were cut short in service of their country.

I found I have a first cousin, twice removed, who was part of the 508 Parachute Infantry Regiment who dropped into Normandy June 6, 1944 and was KIA June 8, 1944. He was posthumously awarded the Purple Heart. I found a Christmas card to my grandparents that he sent from Camp Blanding, Florida in 1942,Â before he was shipped to Europe, and before my grandfather entered service. The card said he was having a great time in training.

My cousin’s nameÂ name was Pfc. William McKnight.Â Even my father did not know of him. My grandfather talked about his war experience only very reluctantly, and even then not much. He certainly did not volunteer anything, including that he had a first cousin killed in the early days of the invasion of Europe.

State Progress on Gun Rights

I’ve noticed a flurry of state news in the past two days, some of which is significant. First, the Texas Legislature has sent a Right to Hunt amendment to the voters for approval. The number of hunters continues to decline, which translates into a loss of political power. It’s important to get these constitutional protections in place before it becomes a real issue. Animal rights people are far more numerous than anti-gunners, and unlike people who favor gun control, animal rights supporters are very passionate and motivated.

Governor Dayton has signed the budget bill that contained the pro-gun measures he did not like. It doesn’t appear the Governor was willing to pick that fight. This was a bevy of pro-gun measures, the most newsworthy of which was legalizing suppressors. In addition to that measure, it also fixes some reciprocity issues, adds emergency powers protections for gun owners, removes the requirement for notification to carry in the state capitol, and allows the purchase of long guns in other states, rather than just contiguous ones.

Constitutional Carry in vehicles has just passed the Alabama legislature, allowing people to transport firearms, loaded or unloaded, without a permit in vehicles. Not as good as full Constitutional Carry, but I’ll take what I can get when I can get it.

In Florida, you can now carry a firearm without a permit during an emergency evacuation or a declared state of emergency. Governor Scott signed it into law. Again, partial victory for Constitutional Carry, but we’re now a step closer to having one of the big states buy in, which we really need to get other states to go along.

Not all is good news. Oregon is in the process of passing more gun control. When the dam breaks, it’s hard to stop the flood. Apparently some lawmakers in Oregon can’t read or understand, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Sadly, a lot of federal judges can’t either.

Also, apparently one Republican lawmaker, the Senate Majority leader, has been holding up campus carry in Nevada. The bill went down to defeat with 6 Republicans voting against. Nevadans have some work to do.

New York City Legal AR-15

This is apparently what a New York City legal AR-15 looks like,Â now that the City has approved the Ares SCR for residents to own. New York City bans any long gun that can hold more than 5 rounds. As you can see, other than having traditional ergonomics, it is an AR in nearly every other way.

I feel sorry for people who have to live under the mass delusion that banning guns that look scary, and banning superior ergonomics, is somehow saving lives. The rifle comes with a 5 round magazine, but it’ll accept STANAG magazines, which can be easily bought anywhere else in the country, even in New Jersey (though limited to 15 rounds there). The removed features (flash suppressor, bayonet lug, and pistol grip) don’t make the firearm inherently less powerful or deadly.

Surely the anti-gun folks would argue this is why we need to make all semi-automatic firearms illegal, which surely they’d like to do, but they can’t. So they are willing to settle for this ridiculous charade, where they pass something utterly useless that will have no effect on someone intent on harm, so they can tell themselves what enlightened, caring people they are.

Weekly Gun News – Edition 3

Yesterday was mostly a bevy of clients demanding attention, then later in the day, the weather was just too nice not to do some work I’ve been putting off in the backyard. So I didn’t get much in the way of posting done until late yesterday evening. I thought today would be a good day to have the weekly gun news, and hope for more worthy news later in the day.

Hey gun control folks, how’s that campaign using the Waco biker gang shootout to derail open carry in Texas going? The good news is that’s pissing off the right people. The people who are trying to use this to stop open carry should have to explain how open carry would have made a difference, given none of the bikers were open carrying.

Speaking of pissing off the right people, that seems to have happened with our recent court victory in DC.

It’s difficult to stand up for due process when the media can savage you like this. This is not the only article I’ve seen along these lines.

Of course they are: Obama Administration against CMP 1911 sales.

Dave Hardy’s “Of Arms and the Law” is three years ahead of the mainstream media news cycle! Apparently some Dem insiders were worried back in 1994, when Clinton decided to do gun control, that it might lead to Majority Leader Bob Dole. So one of them wrote George Snuffaluffagus, or however you spell it. Well, short of it is, they didn’t listen, and Bob Dole did become majority leader.

Another long time traditional gun blog bites the dust. It’s a rough climate out there for non-professionals. Everyone with a dime to gamble on new media ventures wants in on the gun thing, and who can blame them? Guns are the only “right leaning” issue coming out of the Obama years better off than when it went in. Of course, that’s largely because it’s not really a strictly right leaning issue.

The Supreme Court of the United States is weighing another gun issue in regards to San Francisco’s safe storage laws. Safe storage, of course, meaning it has to be stored in a manner that renders it useless for self-defense.

The key word here is that the man had a license to carry firearms. Warning shots are never a good idea.

NRA is planning Â major voter outreach effort in 2016. Polls show approximately 1/5th to 1/4 of Democratic voters are inclined toward gun rights. If NRA really wants to be able to continue to target wayward politicians, they need to target those voters.

Tam notes that the media discovered there was, brace yourselves here, a cache of gun parts in a gun factory. Scarebleu!

Hey, maybe gun control can do great things for America, like it has for Brazil.

Well, that was mighty nice of them, given that’s what the law says: ATF rules that FFLs can rent handguns and ammunition to 18-20 year olds.

Progress in Minnesota. Unfortunately, it looks like Dayton has found his excuse to veto the whole ball of wax, without having to make it look like it’s all about guns. Omnibus Bills can work both ways when dealing with an intransigent executive.

Ace of Ace of Spades on Dems and gun control: “A religious devotion? An offering to the God of Government?Â The Democrats’ proposed laws increasingly look like prayers in legislative language.”

Pressure mounting to pass National Reciprocity. It would be fun to try to get this done under Obama, by attaching it to some Bill That Can’t Be Vetoed. But he could always throw a hissy fit, like Governor Mark Dayton of Minnesota. But if things go well for the GOP in 2016, it would be nice not to leave this as their,Â “Well, we did this for you, so shut up and keep voting,” issue.

Off Topic:

As someone who, as a kid, watched Letterman in his prime, I have to agree with Ace on this one: “Tonight, Dave Letterman retires.Â But he quit a long time ago.”

Richard Dreyfuss: “Election Coming: Nobody Knows Anything.” I’m not one to pay much attention to celebrities, but I don’t think this is a partisan issue. We don’t teach civics anymore. The generation coming up is woefully uneducated in civic life, civic matters, and history. I don’t think this is just me getting old.

This is a good piece on Elon Musk’s space dream. Oh, if only I had enough money in my 20s to be negotiating with cigar smoking drunk Russians to buy an ICBM. Even better if I could figure out I could build it cheaper myself!

How to take over a small country in 10 easy steps. This was a great laugh reading during a car ride over the weekend. Hat tip to Dave Hardy.

Bad Laws Get Ignored on All Sides

Joe Huffman quotes John Stossel about how people tend to ignore bad laws, and notes that’s probably what’s going to happen with I-594.Â I would easily bet that Pennsylvania’s ban on the private transfer of handguns is the most often broken gun control law in this commonwealth, if we could have absolute clairvoyance to know that kind of thing. It is most often broken by those who have no criminal intention and by people who are otherwise no threat to society. Often times they are unaware that their property is not like other property, and they can’t just sell it at will. Other times they have no idea that even lending a gun to a friend is illegal if that friend doesn’t have a License to Carry Firearms. I was certainly unaware of this in my early days of gun ownership.

This is why the transfer ban on handguns is almost never enforced, even when broken by very dangerous people who do have criminal intent. You see that in Washington State and Oregon now, where you have a lot of sheriffs who say they will not enforce the new law in their jurisdiction. Even Philadelphia, which is very anti-gun, does very few prosecutions of people for violating the transfer ban, even when the violator was pretty clearly knowingly furnishing a handgun to someone who can’t legally possess one.

All banning private transfers accomplishes is to breed contempt and disrespect for the law, and for we Pennsylvanians, it’s been doing that for so long ignoring it has become part of the landscape on all sides, including the criminal justice system. So why have it? Really, because it’s about the best the other side can hope for.