2015 – Page 31 – Shall Not Be Questioned

Weekly Gun News – Edition 4

We didn’t manage to get out a gun news post last week, so I thought I’d start the week off with one. At the beginning of last week, there wasn’t much news, and then at the end a flurry. But I have to admit, almost 7 years into the Obama Administration, news about gun control and Obama bores me; a dog bites man story at this point. It was pretty clear once we dealt him an embarrassing defeat after Sandy Hook he was going to send the rest of his Administration trying to stick it to us any way he could, and he’s performing as expected.

First, the big news: Texas passes licensed open carry and campus carry. There’s no doubt Abbott will sign both. Looks like the campus carry bill still offers flexibility to private institutions. The important thing, in my opinion, is that the “off limits” restriction in the carry law is removed. Anything beyond that is just school policy.

Trouble is afoot in New Jersey today. Looks like Gun Violence Restraining Order again.

Big crowd in Oregon promising to ignore the states new private transfer ban. Seems to be a lot of that going around these days. It’s almost like gun control breeds contempt for the law. Who knew?

The media still does not understand “stand your ground.”Â Probably because distorting what it really is fits their agenda.

Here’s a map of Salem Oregon, if they were to follow the five mile rule we talked about earlier.

Charles C.W. Cooke: Vince Vaughn is right on guns.

Some gun business needs to take out an ad on a SEPTA bus and then sue them for refusing it. I don’t think they get what content neutral really means.

Clayton Cramer and Joe Olson have a new paper out looking at the commercial history of firearms. Important groundwork for developing court doctrine around what commercial activity with arms is protected by the Second Amendment.

Mapping out networks. Interesting.

Constitutional Carry is dead in South Carolina for now.

Constitutional Carry headed for a House vote in Maine.

The Arizona Republic promotes some common sense when it comes to lead ammunition. Persuasion rather than force? Now there’s a new idea.

We often say that the First Amendment can be more dangerous than the Second. Well, there’s at least one college in Texas that thinks using the First to advocate for the Second is the height of danger. If I were the Republicans, I’d cut any and all federal funding to any school that enacts a speech code.

Speaking of schools and crazy, a New Jersey school suspended a student for having a nerf dart in his pocket.

D.C. fails to get a stay, and will have to start issuing licenses.

Women are driving the shift on gun rights. In my experience, women tend to get more involved than men do in the political fight.

Tomorrow is “wear orange” day. Miguel reminds us that many people who were part of Bloomberg’s last failed group are wearing orange daily.

Bloomberg’s outfit is getting in on the celebrity business. This used to be Brady’s strength, now I guess no longer. It’s hard for me to see how the Brady organization is going to survive, unless Bloomberg chooses to keep it alive to avoid the bad press for gun control as a whole.

Speaking of the Brady Center, looks like more legal trouble. Smacks of desperation to me. I have to believe they are nearing the end of their rope.

Bloomberg News is catching onto the whole abolish ATF meme. They’re all starting to figure out that the FBI would be a far better advocate for more gun control than ATF.

Dog bites man: Vivek Murthy to use his position as Surgeon General to promote gun control. It was a fore-drawn conclusion as soon as he was confirmed.

SayUncle says we need a new catchphrase for people who leave guns in bathrooms: “After youâ€™ve shat, secure your gat.“

You remember that fake gun store that was set up in New York City? David Codrea notes that even the people who went into the store were fake. All actors.

What legal self-defense products can you legally use in Britain? None.

Carolyn Maloney floats her gun control bill that will go nowhere, calling for all gun owners to keep insurance.

Off Topic:

Segregation in the 21st Century? I thought we had tried this once, and all were pretty much agreed it didn’t work out very well.

Just a reminder, New Jersey is an extremely corrupt state with a judiciary that has almost no regard for the rule of law.

Looks like Chuck Schumer is about as intent on useless regulation of drones as he is useless regulations of guns.

Obama’s Coming Gun Regulations

The Obama Administration is preparing new gun regulations. This news is all the rage, but theÂ article is short on details, so we don’t really know exactly what’s coming. In my opinion this action by the Administration is about two things. The first is revenge, because we dealt the them a high profile and embarrassing defeat after Sandy Hook. Two, it is about keeping the issue alive into the next Administration. I believe ATF will write new regulations that will be difficult for a future President to reverse without provoking a backlash from the media and gun control advocates (but I repeat myself).

I believe it will be about subtly expanding the pool of prohibited persons and broadening the definition of “adjudicated.” It’ll impose new regulations on FFLs about storage requirements, and reporting requirement. The question is whether it ends up beingÂ very audacious, going far beyond what the Gun Control Act allows. I think the smart move would be subtlety, but this Administration is rather unpredictable. If it’s bold regulation that greatly expands the power beyond what the Gun Control Act will allow, we’ll fight it in the courts and probably win.

What Obama should want is new regulations that looks quite reasonable on the surface, but screw us in subtle and not so subtle ways that are hard to explain to the average low-information voter. Regulations that we have to convince another President to re-examine under risk of a media frenzy. If the Administration doesn’t push us back as far as they can, we’ll be on a tear if there’s a Republican in the White House in 2016. Far better, they would think, that we spend all of our capital having to undo the mess the previous Administration made, rather than spending it to move forward.

NRA Upsets Christian Organization over Sunday Hunting

Rev. Mark Creech of the Christian Action League pens an open letter to the NRA, taking umbrage at theirÂ promotion of Sunday hunting, particularly NRA’s assertion that opponents are a “small but vocal group,” and “tacitly endorse the view of animal ‘rights’ extremists”.Â I guess the truth hurts. Take a look at your Sunday hunting ban allies and tell me who they are? This isn’t just about Christian imposing their views on non-Christians. It’s also about Christians imposing their views on other Christians who have a different philosophy on the sabbath.

The Christian Action League is promoting a puritanical view of the Sabbath. I don’t mean that as hyperbole, they literally are. There’s also Continental Sabbatarianism that allows for recreation on the sabbath. So I want to be clear that the Christian Action League is speaking for one view of Christianity, and their view isn’t the only one out there.

These days hunting is more about recreation than labor, since very few hunt because they must. Those that do should be free to settle issues of their own conscience in their own way. We allow a lot of recreational activities on Sundays. Why do we still single this one out? In most states on the sabbath, you can buy and drink alcohol, go to the mall, boat and fish on our waterways, relax on the beach, or go for a hike in the woods. If Christian Action League wants to promote Puritan Sabbatarianism, it is free to do so, but I would argue some consistency is due.

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.