2016 – Page 25 – Shall Not Be Questioned

Third Circuit: No 2A Right to Machine Guns

This decision was released right before I left for Louisville. The Third Circuit contains Pennsylvania, Delaware and New Jersey, and has not, in general, been a very Second Amendment friendly circuit.

Heller and subsequent decisions in our Court make clear that the de facto ban on machine guns found in Â§ 922(o) does not impose a burden on conduct falling within the scope of the Second Amendment. Turning first to Heller, we note that that opinion discusses machine guns on several occasions, and each time suggests that these weapons may be banned without burdening Second Amendment rights.

I’ll be honest, I think that’s a misreading of Heller. The Heller opinion does strongly imply that perhaps bans on M16s might be permissible, but it does not explicitly state it. The Court’s opinion calls the reading of Miller that would rule the NFA’s machine-gun provisions unconstitutional “startling.”

Read in isolation, Millerâ€™s phrase â€œpart of ordiÂnary military equipmentâ€ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Actâ€™s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Millerâ€™s â€œordinary military equipmentâ€ language must be read in tandem with what comes after: â€œ[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.â€

I think the Court is correct, except I think the only fair way to determine “common use” is to examine whether the weapon is part of “ordinary police equipment,” the police being the nearest modern analogue to the militia. If theÂ HellerÂ “common use” test were untempered byÂ any analysis of police equipment, the government could evade the “common use” test by banning any new defensive technology before it has a chance to end up being commonly used, as the State of Massachusetts tried to do with electric stun guns (which SCOTUS struck down recently).

So was the NFA truly banning unprotected weapons that have no common defensive use, or was it merely trying to evade Second Amendment protections by preemptively banning it before the people had a chance to speak? To look at that, you have to look at what the police are choosing to arm themselves with, since police carry guns for self-defense, and not to conduct battlefield operations. Are machine guns in common use among police? I don’t know, but the courts should be asking that question before simply categorically declaring machine guns outside of Second Amendment protections.

DC Officials Defying Court Ruling?

Over at “The Federalist,” itÂ is reporting that the author, Devin Watkins, went down to the DC Police Station and applied for a license to carry, leaving the “good cause” section blank. He was told by the officers that they had been instructed to ignore the court order that good cause may not be considered in applications. It never ceases to amaze me how lawless of a lot of big city officials are. If they deny anyone a license for lack of good cause, everyone up and down that chain of command should be held in contempt.

As it stands now, DC is claiming it never told officers any such thing, and that they will be complying with the court order as long as it is in effect. They also say anyone denied a permit for lack of good cause my reapply.

Playing Catch Up

I arrived back from Louisville to an urgent client project with a deadline of Friday, so I’ve been unable to post. We will be returning to our regularly scheduled blogging shortly. I’ll probably have a few things later this afternoon. Do you ever feel like taking vacation isn’t worth it? One of the things I’ve learned over the years is that two weeks is the minimum to really unwind and forget about work. Anything under that and you tend to just shift work around, rather than really accommodate for vacation time.

NRA Member Engagement – Voting

One of the best reminders that NRA really does represent a real grassroots movement is that members directly elect the board of directors. There’s a clearly defined way to become a voter and the results are published openly.

I’ve added this year’s numbers to my collection of NRA voting data. There are a few interesting differences this year over previous years.

The number of voting members who were sent ballots has increased 36.5% since I started keeping track in 2006. Most of that growth has happened since 2011 when there appears to have been a cleaning of the rolls.

The yellow bar is how many were mailed back vs. how many were mailed in red.
2016S represents the special recall election of 2016.

The number of voters actually participating in the elections is, unfortunately, not very high and not growing substantially. But given that we have a growing problem of too many celebrities and are losing activist leaders with diverse skills, this may not be a great number. It would probably be better to see more informed voters rather than increasing numbers of people voting for any name they vaguely recognize from popular culture.

Perhaps one of the most interesting statistics is the fact that “last winner” was on a fewer percentage of ballots than ever before. The same was almost true for the top vote getter as well. (Technically, last year’s top vote winner, Ronnie Barrett, was on a lower percentage of the ballots, but not by much.) Those two numbers indicate to me that more voters are more likely bullet voting – voting only for a handful of candidates instead of all 25 slots. That’s actually a much smarter way to vote if you’re interested in getting key candidates on the board. Increasing the votes of those who you care about less could end up hurting your favorites on the ballot.

Another good number from this election is that the percentage of invalid ballots is still low – 2.79%. That’s compared to a high of 8.71% from the years I’ve been tracking. The most common mistake is marking too many candidates. But the next highest mistake is an easy one to fix – remembering to sign the envelope before you seal it and mail it. A whooping 723 voters didn’t have their ballots counted because of this authentication error.

Perhaps the most important thing to consider is what a difference only a few votes makes. The difference between the candidate who did make the 25th seat and the one who did not was only 841 votes. That’s a number smaller than some 100% NRA clubs. Votes do matter, and I loved that NRA started giving out buttons to members who took the time to vote in the 76th director race. If they keep doing that, you know I’m going to start a collection and wear them on my pass each year. :)

NRA Attendance – The Bigger Picture

While I was driving all the way from Louisville to Philadelphia-area yesterday, Sebastian handled the reporting of what so many always want to know – how many freedom lovers came out to hang out with fellow NRA members.

Beyond the fact that it’s the 2nd largest convention, how does it really compare? Fortunately for you all, I like data that no one else seems to keep.

I’ve been keeping track of the attendance ever since my first meeting in 2004, or as I call it, Pittsburgh #1. Since that first meeting I attended out of college, this year’s meeting was about 1/3 bigger (31.2%). Over last year, the growth was nearly 2,000 people, but only about 2%.

In that time, we’ve had 4 repeat cities – Louisville, Houston, St. Louis, and Pittsburgh. Aside from Houston which is kind of an anomaly, Louisville actually saw the greatest same city increase in attendance (21.5% compared to Pittsburgh at 16% and St. Louis at 14.3%).

Most of the dips you see in the early columns are simply location issues. That has become less of an issue since I started attending, as more people are willing to make this an annual or nearly annual tradition regardless of how far it is. In this article on Indianapolis securing two more years, they note that Houston’s last convention saw 43% of attendees coming from 200 miles away or more. You can see this reflected around the floor and in the member meeting where this year’s family of the youngest life member was from Chicago and the oldest life member traveled from Ft. Smith, Arkansas.

And while I don’t have firm numbers since the other side is against such measures, I can tell you that you can largely flip this chart around and chop off many zeros on the numbers to represent the anti-gun side presence at each event. There were actually a good number of protesters at Pittsburgh #1. They were pretty good spirited folks, too. There was a chanting contest and someone who shipped a Million Moms banner up from their Atlanta chapter. The biggest downers at the event were the ACLU volunteers who were trying to convince NRA members that they had no right to photograph protestors on the street, presumably in an effort to keep us from highlighting how few there were compared to the 61,319 NRA members. There was an uptick for Pittsburgh again in 2011, but otherwise, the protests just keep getting smaller.

It will be interesting to see the future. The event is getting large enough now that many cities simply cannot handle it. Even though Louisville has some of the largest event space in the country, the logistics just don’t work well. The Expo Center didn’t open enough gates for getting people into the parking lot, and there parking attendants weren’t on top of making sure spaces were filled in an orderly manner on their busiest days. They also apparently did nothing to try and direct traffic on the main roads to under-utilized gates. The gate we used (6) had very little wait on Friday based on the Google traffic report and very little on Saturday, too. That’s on the city hosts, and not on NRA. However, since NRA has to look at the bottom line of member experience, Louisville could lose future business by their unwillingness to manage traffic in a reasonable manner for an event they knew to be huge. Interestingly, it looks like Louisville is losing other conventions of similar sizes like the FFA which is close to 60,000 people. That article actually notes that new hotel space is only going up downtown, away from the Expo Center. That only compounds the traffic concerns.

As for the immediate future, the dates and locations are:

2017 – Atlanta, Georgia

2018 – Dallas, Texas

2019 – Indianapolis, Indiana

2020 – Nashville, Tennessee

2021 – Houston, Texas

Back from NRAAM 2016 Louisville

Got back home sooner than expected, despite taking a more scenic route through West Virginia, avoiding Maryland. We discovered if you do a custom route on Google Maps, it’s fine unless it has to recalculate, in which case it defaults to the shortest route. Ordinarily, that would be fine except that the shortest route could get me thrown in a Maryland State Prison. Google has a multi-destination feature on the web version, but the mobile and tablet versions don’t. They allow you to avoid “Highways,” “Tolls,” and “Ferries,” but they don’t have an option for “Anti-Gun States.” Maybe I should make a feature request.

NRA Annual Meeting 2016 Attendance

My source from the NRA Board Meeting had reported in, and attendance this year was 80,452. This is the second highest attended Annual Meeting. Houston still holds the overall record of 86,228. Houston was when we were under the most significant attack we faced after the antis successfully exploited Sandy Hook to go after us. Also, on Friday, traffic gridlocked in Louisville. Saturday the venue was managing the parking situation pretty poorly. There’s a good chance this could have been a record breaker if not for the venue. In Nashville last year, attendance was 78,865, and before that in Indianapolis, 75,267. I’m afraid that for us Pennsylvnians, NRA has outgrown our venues. Pittsburgh gridlocked with under 70,000.

In a way, as the event grows it gets less fun for me. It’s harder to move around the floor and you don’t run into people as much. If I missed you this year, sorry about that. Even the law seminar has gotten so big, there were several readers there who I’ve met before that I’ve missed because the room really is that big.

The Palm Pistol Appears at NRAAM 2016

Matt Carmel’s Palm Pistol, which was made for shooters with disabilities, has finally made an appearance at NRA. He told me he’s still trying to get the FDA to list it as an approved medical device.

It’s definitely non-traditional, but the carbine actually worked pretty well from an ergonomic point of view. I really would like to be a fly on the wall when the Obama Administration is forced to approve a firearm as a medical device. He’s filing under both 21 CFR 890.5050 “Daily activity assist device”, and an 21 CFR 890.5370 “Nonmeasuring exercise equipment.”

Sunday Funny: Seen on the Internets

Media Lying About NRA – Again

Usually when a reporter wants to spin against the NRA and its millions of grassroots members, it’s a lot more subtle than outright fabrication of things that did not happen where cameras and thousands of people are present. I mean, let’s face it, that’s just bold to think you won’t get caught in that kind of lie.

However, that’s what Louisville Business First‘s Baylee Pulliam tried to pull off in her Twitter coverage of the NRA Annual Meeting.

Pulliam tried to claim that NRA was dubbing dog noises over video of Hillary.

Except they didn’t. It’s a complete lie that NRA dubbed barking noises over Hillary. NRA simply played the video of Hillary herself barking like a dog.

Even though I was in the law seminar during the political event, I checked with multiple people there, and I watched the video which NRA News helpfully streams live and posts after the event.

But don’t let that stop the narrative that must be told that NRA and its members hate women. No, Pulliam needs to help push a narrative, so false accusations of dubbing must fly around social media.

Since at least one person has called her out, Pulliam tried to delete her tweet. But was there any kind of correction or apology posted? Nope.

Acknowledging such an accusation means it gets documented that the reporter doesn’t actually keep up with current events and somehow missed the news of Hillary barking, doesn’t do research before throwing out claims against innocent organizations, or she really is simply willing to unfairly accuse NRA of actions they did not take until someone publicly calls her out. With more than 20,000 videos on YouTube and nearly 500,000 Google links when searching “Hillary Clinton barking,” I find it doubtful that someone covering political events would miss that kind of news. It’s certainly possible that she just throws out accusations and doesn’t do research before doing so, but that seems a little reckless for a reporter at a business-focused media outlet. Sadly, that leaves the third option as a very real possibility.