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“Oh Say Can You 501(c)”

Massad Ayoob was the last presenter before the lunch break, and he’s a difficult guy to summarize. He’s a very good presenter, and I was more interested in listening than writing about it. So sorry about that. I can see why he’s sought after by defense attorneys.

The first post-lunch topic is relevant to running shooting clubs, and since I’m an officer at mine, it’s relevant. My club is a 501(c)(7), but she covers all the tax exempt options. I didn’t really know that gun clubs could be organized under 501(c)(3) using an educational mission. I’m not sure I’d want to organize under that, because it changes how you’d have to run a club. I think it would be difficult for most clubs to manage without getting themselves in trouble. 501(c)(4) seems a more realistic subsection to organize under, but even that has the issue that the purpose of the organization has to be a public one. That means the club would have to be very open to members of the public. Neither 501(c)(3) or 501(c)(4) allow an organization to have a private benefit.

If you’re a gun club, I think 501(c)(7) is the best non-profit structure around which to organize. I’m learning a whole lot about how to manage (c)(7)s.

Responsibility for Criminal Firearms Violence

The second panel is by James B. Vogts. He is the attorney defending Remington in the case in Connecticut where the plaintiffs argued that selling AR-15s to civilians amounted to negligent entrustment. His talk is almost exclusively on the Protection of Lawful Commerce in Arms Act (PLCAA).

I was not aware that PLCAA history goes back to Kelly v. R.G Industries, Inc. in Maryland in 1985. In this case R.G. industries made a cheap revolver, a so-called “Saturday Night Special.” R.G. industries was found strictly liable for a criminal’s use of the firearm. I didn’t become aware of this issue until cases in the 1990s, when Hamilton v. Beretta USA Corp before Judge Weinstein. Weinstein was the one federal judge willing to assign liability to manufacturers for criminal misuse of their product.

There’s some background on Soto v. Bushmaster, which was the beginning of the case after Sandy Hook arguing several things under the PLCAA exceptions, including that selling AR-15s to civilians is negligent entrustment, which is excepted from PLCAA. So far PLCAA has held, but the plaintiffs are appealing their loss to the Connecticut Supreme Court.

Overall, PLCAA has generally worked effectively. There have been some disagreement between courts about whether PLCAA preempts ordinary negligence claims. These problematic courts have allowed all claims against a manufacturer to proceed if only one of the claims was not a “qualified civil liability action” that is preempted.

20th Annual Firearms Seminar

Here we are in Atlanta for the 20th Annual Firearms Seminar. As usual, we’ll be live blogging a summary of the panels. It’s taking me a bit to get used to the humidity. The last time my family was here, we burned the place to the ground.

Jim Porter is kicking things off this year. The first panel is Steve Halbrook and Nelson Lund. I’m always happy when they put Steve early. He’s one of the leading experts on this topic, but he has a very mellow, southern gentlemanly voice that is good when the coffee is working at its peak.

Second Amendment Litigation: Ongoing Challenges
Steven P. Halbrook

Steve Halbrook recounts how Heller came about. It’s been so long I had almost forgotten what it was like. Everyone believed the case would be 5-4, but no one was sure which way it would go. It was unknown which side Kennedy would come down on until he questioned the D.C. attorneys “Weren’t the founders pioneers, who needed guns to protect themselves from criminals, Indians and grizzly bears?,” which effectively took everyone off the edge of their seats. It looked like we had Kennedy. Heller was delivered the last day of the Court’s session. Everyone was on the edge of their seats again when it was announced Justice Stevens would read the summary of the Opinion of the Court. That would have meant a loss, but it turned out to be a different case. When it was announced Justice Scalia would be read the summary for the very last case, we all knew it was a win.

Interesting trivia about DC gun registration: DC argued in Court that their registration system was important because it allowed police officers to check to see if a gun was present on the scene if they were responding to a call. In fact, DC police never checked the registration system before calls. Why didn’t they? They were actually forbidden from accessing DC’s registry. The Court ended up upholding registration anyway, because of course they did. Though, they did throw out the need to re-register.

Halbrook reviews several other absurdities from the lower courts, such as “arguing that civilianized semi-automatic firearms that are used by no military in the world may be banned because they are weapons of war only suited to military use.”

Halbrook believes that cert will be sought in the case of Kolbe v. Hogan, where the 4th Circuit Court of Appeals upheld Maryland’s assault weapons ban via some absolutely atrocious reasoning. I know there have been more than a few people who have asked about that.

The Right to Bear Arms and the Philosophy of Freedom
Nelson Lund

I am a fan of Professor Lund, because he wrote a law review article about having to look at police use when making determinations about protected arms. His talk today is more broad. He is speaking critically of Scalia’s Heller opinion. I guess we can do this now that he’s dead :) His essential criticism is that while parts of Scalia’s opinion is generally regarded as a great work of originalism, on the core issues relevant to today’s debates it is a weak opinion.

The 5-4 decisions in Heller and McDonald could prove to be little more than abortive attempts to begin developing a robust Second Amendment jurisprudence. The Supreme Court has disinterred the Second Amendment, but it has yet to give it meaningful life.

Lund speaks about this being an issue of elites v. the common citizenry. This is a topic I planned to write more about soon:

When it comes to gun control, it is hard to see much personal benefit for our elites beyond the sheer joy of exercising the will to power over people they regard as intellectually and morally backward.

I wish I could say his outlook on the Second Amendment is optimistic, but it isn’t. I wish I could come up with reasons to disagree with this outlook.

There’s some spare time for Q&A on the first panel. As many of you know if you’ve been around this issue for a while, Q&A means “my chance to be heard before a captive audience.”

Firearms Preemption Update

Passed the Senate by a veto-proof margin. That’s not something that happens often in this state! If we can do that well in the House, we may be able to get this, despite the Dem governor. The GOP currently has a comfortable majority in the House, and pro-gun Dems are not yet extinct in this state. This might be doable!

Not a bad idea to call your senator and thank them. Shows we’re paying attention.

ARS Poll Finds NRA “Overrun by Lobbyists”

Gabby Giffords outfit conducted a poll of gun owners that shows people think NRA has been overrun by lobbyists. I, for one, want them to be overrun by lobbyists. That’s what I pay them for.

I’ve come to the conclusion that polls are very effective at telling you what people like to tell pollsters. For any other purpose, they are bullshit. I took a closer look at the poll here. What’s interesting is the same poll shows a plurality of those surveyed thought NRA represented their interests as gun owners. Also note Question 5:

Since the 1930s, silencers have been regulated the same way as machine guns and short barreled rifles: to purchase a silencer, the buyer must have a clean criminal record and register the silencer with law enforcement. Do you support the current law regarding silencers, or would you support changing the law to deregulate the sale of silencers?

See what they are doing? It’s all about how you ask the question. Not only is this an incomplete picture of the process, but they build up current policy, and then ask the person being polled whether they’d like to tear down what they previously established was good and wholesome. Let me ask the question another way, loading it in the other direction, while still being entirely factual and truthful:

Since the 1930s, silencers, which can reduce the noise of a gunshot to a safer level, have been regulated the same way as machine guns and short barreled rifles. Would you support changing the law to regulate silencers the same way rifles, handguns, and shotguns are regulated, requiring only an instant background check and ATF purchase form?

Do you think think they’d still get 73% opposed to deregulating silencers if the question were asked this way? Or would they perhaps see the numbers flip in the opposite direction?

They asked about constitutional carry in a better way than a lot of polls I’ve seen, but it’s still loaded in the same way:

Currently, most states require a permit to carry a concealed handgun in a public place. To get a permit, a person must complete a basic gun safety course, have a clean criminal record, and pay a processing fee. Some have proposed letting people carry a concealed gun without a permit. Do you think the requirement to have a permit to carry a concealed handgun in a public place should be continued, or do you think it should be removed?

First, they elevate the permit process in the mind of the person they are polling. It’s being sold as a very good thing (a sharp contrast from the demonization of the process years ago. This is a win for us. In order to fight constitutional carry, they have to implicitly agree that shall-issue is good. This is the same thing they have done and keep trying to do to us on background checks). After the permitting process is being sold as a good thing, they then asked the person if they’d like to tear it down. You’ll never see them ask this question like this:

Currently, most states require a person wishing to carry a concealed handgun in public to apply for a license to do so. Do you support allowing anyone who can legally possess a handgun to carry one in a public place without first having to obtain a license?

You’ll never see it asked that way, because it doesn’t load the question. There’s no attempt to build up the status quo and then ask whether you’d like to tear it down. In the case of the silencer question, I loaded to get the answer I’d like. In this case, I take the reader’s knowledge for what it is. I build nothing up. I state it only as it is. Do you think they’d still get 88% in favor of the status quo if it were asked my way? Hell, it dropped 8 points just asking more directly in Question 8, even after they already loaded the results with Question 7!

I also note in the poll that 35% are Democrats versus 39% Republican, with 26% being independent or other. Since we’re loving ourselves some polls here, Pew’s surveys (and I’d note with surveying rather than polling, that it’s harder to load “Do you own a gun?” and ‘What is your party affiliation?’ so take that for what you think it’s worth) show that 49% of self-identified gun owners are Republican, 22% are Democrat, and 37% are Independent. How did PPP and ARS end up with Democrats so much more represented in their poll and Independents and Republicans so much less represented, versus what Pew found in their survey with a sample roughly twice the size of this one?

Rumors Getting Stronger on Kennedy

The rumor mill is getting stronger that Justice Kennedy will hang it up this summer, but one has to wonder if the rumors are being floated by others to coax him, or the rumors represent true information based on private conversations that have been leaked. We’ll find out soon enough.

I’ve said before that I don’t think Kennedy is the weak link in the Heller majority. We know that Alito, Thomas, and Scalia are/were firmly on board. Given Justice Gorsuch’s judicial philosophy, we can assume he’s a likely solid vote. So it’s either Roberts or Kennedy who is the weak link, or possibly both. It’s quite possible that Kennedy is reluctant on the Second Amendment, and combined with Roberts’ tendencies toward minimalism, taking the Second Amendment further is an impossible proposition with the Court as it is now. Justice Kennedy retiring would definitely change things, unlike Justice Gorsuch’s ascention, which was about maintaining status quo.

Apparently NRA and CRPA are bringing suit against California’s latest assault weapons ban. It’s pretty clear they think something has changed, or will change soon enough, to warrant taking a risky case forward.

Weekly Gun News – Edition 59

Do I dare try to see if I have enough links? I dare!

Bloomberg has apparently spent $135 million dollars so far on gun control. So far, he’s made Washington worse, barely eked out a victory in Nevada that turned out to not be much of a victory, and was outright defeated in Maine. I agree with Jacob: not much to show for it. Money can buy a lot in politics, but not everything. Still, $135 million is chump change to Bloomberg.

Anti-gun journalist who has written on the topic for years finally decides it might be time to actually meet a gun owner. Familiarity is the foundation for winning for our issue. People with at least some familiarity are harder to bullshit.

Apparently there are a baker’s dozen law professors who want to argue a theory of negligent entrustment that would make it negligent entrustment to sell AR-15 to citizens at all. You could use the same theory to sue super car makers out of existence. After all, who but a professional driver is qualified to drive a Lamborghini? Welding torches: really for professionals, aren’t they? I used to read a lot more legal writing until I realized a lot of people who do legal writing are brain dead.

Tam: “At what point do you ignore your ego and admit maybe you might could take some lessons?

My impression has always been that Shannon Watts just honestly isn’t very impressive. Seems I’m not the only one. I don’t mean that in the sense that I disagree with her, but she’s not really very good at what she does. That’s a sharp contrast to Bloomberg, who I think has done a lot of smart things, even though I disagree with what he’s doing and wish he’d find better things to do with his money. That probably makes me sexist somehow.

There’s a bill in Pennsylvania to allow school officials to be armed. Josh Prince notes some issues with it. I’d note that it doesn’t seem to muck with the “other lawful purposes” language, just creates an explicit means for school personnel.

The bill to enhance our preemption law continues to move forward in Pennsylvania. Though, I fully expect Wolf will veto it.

This weekend was the March for Science. Making science a partisan issue is a mistake, especially given that scientific ignorance is not specific to a single political leaning. This is more people getting together to congratulate each other for their shit not stinking.

I spent Sunday at the range playing around with this scope clamp, for science! It’s just about as good as having a person spotting for you, since you can instant replay your shots. This is at 200 yards. My PSL was whacking the right-top corner of the plate. My spotting scope is a cheap Bushnell model. Nothing high end.

Gun Rights Musings – Social Trust

Since news is relatively scarce, I’m going to start a recurring feature sharing things I’ve come to believe over the past decade. Thinking some more I realized how much my post the other day didn’t really include. Even if there’s no news I can probably think up something every couple of days for a while to fill space. I’ll start with a topic, then opine. Now, what I opine about in these might be bullshit, but it’s bullshit I think about. By all means, if you think I’m wrong, argue.

Today I’m going to talk about how we ended up with much of our current gun control. I don’t mean how we ended up with them politically. How we ended up with them politically is we lost the battle against the Gun Control Act and Brady Act. But there was a larger cultural framework that got us here.

There is a significant difference between rural and urban societies in terms of social trust. Social trust basically means whether you believe in “the honesty, integrity and reliability of others.” Rural populations have higher levels of social trust than urban populations. It’s been shown that rapid urbanization lowers levels of trust, and the United States experienced a significant urbanization, especially in the three decades that followed the Second World War. Moreover that urbanization coincided with a great increase in mobility.

As a society urbanizes and becomes more mobile, in high-trust societies like our own, there’s a tendency to formalize mechanisms of trust. In a non-urbanized society, or even in an urbanized but largely sedentary society, I know not to hire Joe because it is well known that Joe is lazy, his family is lazy, and generally no good. In an urban and mobile society, a process like hiring becomes more formalized. Joe Smith presents a resume. Maybe fills out a job application. He’ll be interviewed. Someone will ask for and check references, etc.

In my opinion, most of the gun controls of the 1960s up until the Brady Act has been driven by the inclination of an urbanizing people to formalize mechanisms of social trust. Social trust in urban or mobile environments can’t come from the fact that you generally know the people around you. I also believe this is why urban populations are more accepting of big government, because it is seen as a necessary agent of building social trust. I’m not saying the gun control advocates who pushed these issues were motivated by promoting social trust. Any successful social movement will pick up on social trends and exploit them. The question is what resonates with ordinary people not engaged closely with your issue? Sometime in the 1990s, the gun control movement switched to exploiting cultural condescension as a social trend.

Polls show that social trust is on the way down. While I think this is bad, because societies with a low level of social trust don’t tend to work very well, I’m not sure it will result in more gun control. It may actually result in less, and people feel less secure. But I think a desire of people to preserve social trust in an urban and mobile society explains much of our current gun control regime. I’m not saying it’s right, or effective, but I am offering an explanation of why we’re here.

Beliefs Change Over Time

I’m short on things to write about, probably because I haven’t been paying as close attention to the news. It’s occurred to me that there’s a lot of things I believe now that I didn’t ten years ago. Ten years is an awful lot of time to be immersed in writing about a single issue, and there’s not much I haven’t thought through, thought through again, then thought through a third time just to be thorough. Thinking about a list:

  • The biggest threat to gun rights are from states like California and New York because for better or worse, these states control the broader culture and they’ve been very effective at stamping out their own gun culture. YouTube recently had a dust-up where ISIS videos were getting advertisers. After a backlash, they created a category of “objectionable content” to be starved of advertising. Unfortunately for us, they put gun videos in that category. And why wouldn’t they? Do you think very many New Yorkers or people in Silicon Valley, where most of these companies draw their employees from,  know many people who enjoy shooting? They probably know more people who disdain it.
  • The primary motivation of most people seeking greater control over firearms is cultural chauvinism. Public safety is just how they justify it to themselves and others. But in reality it’s primarily, “I don’t like those kinds of people. I certainly don’t want them having guns.” Sometimes it can be “I’m afraid of those kinds of people. I certainly don’t want them having guns.”
  • We’d all do a lot better to look after the gun culture in our local areas. These days I’m much more concerned about the future of the shooting sports in suburban Philadelphia than I am about the future of the shooting sports in general. Any time a club dissolves, a shop closes, or shooting programs stop for lack of places to shoot, that’s a resource that will never come back. The best antidote to the cultural chauvinism mentioned above is familiarity, and I don’t think it’s much more complicated than that.
  • Social media is a vast wasteland and a huge waste of time. It’s not so much that people on Facebook disagree politically — I’ve never been able to get all that worked up that other people in my life don’t always share my opinions — It’s the fact that on Facebook, you see friends and family post ignorant, often vile, hateful things they’d never say to your face. I’ve been personally cutting back my presence significantly, and it wasn’t for the fact that I’m running my club’s Facebook page, the blog’s Facebook page, and that it’s Tam’s comment section these days, I’d probably just stop. Since giving up Twitter and cutting back on Facebook, I’m getting a lot more done.

Our side has our share of bullshit too, and I’ve come to acknowledge much of it.

  • For an ordinary middle-aged suburban dweller, you’re more likely to die prematurely from cardio-vascular disease than you are to need your firearm. If you work in front of a computer all day like I do, that’s probably far more likely. People who choose not to carry a firearm are making a fine choice. You might look at the balance of risk v. reward and come to a different conclusion, and that’s fine too, but someone whose calculation thinks carrying a firearm is too much of a pain in the ass isn’t making a foolish choice.
  • You don’t need to be the greatest gun ninja in the world to successfully defend yourself. Everyone should seek out some basic training, but I think beyond that it’s for fun. Like the link says, if you take care of the basics, you’re already way ahead of the curve.
  • A lot of people out there who have guns are complete idiots who I’d feel much better if they did not own or carry firearms. The difference between me and a gun control person is that I don’t think that’s a solvable problem, and you’ll do more damage trying. There’s a lot of people I wish didn’t have drivers’ licenses too, but that doesn’t mean I get to dictate my preferences, or that there’s any such thing as an idiot test.
  • There really are significant numbers of gun owners who support gun control. Even some of the very strict gun control you can find in the dozen or so bad states. Our side often likes to call these people out as false flags when they appear in media, and perhaps some are. But if you think they all are, you don’t spend enough time talking to other gun owners. This ties back into local engagement. There’s a lot of times I think New Jersey gun owners own a lot of the responsibility for their current sad situation.
  • The Second Amendment is nothing more than words in a piece of parchment on display at the National Archives. Those words are not self-enforcing. Their meaning might read plain as day to you, but you’re not a federal judge. The ghost of James Madison is not going to appear to make things right. Those words only mean something because people; people like you and people like me, have struggled to give those words actual meaning. That struggle does not end. In a way this should be first on a list of our side’s bullshit, because it’s the folly I run across most often.

I’m sure I’m forgetting a lot. But those are things I’m thinking about in terms of where I’ve come to with this issue in the decade I’ve been writing about it.

Weekly Gun News – Edition 58

There hasn’t been quite enough news to get these out every week. But here goes:

You know all the stories about gun sales tanking post Trump? Fake News.

Also, you know the story about how the NRA was never political before the 1977 Cincinnati Revolt? Fake News.

We seem to have a bad track record with these reality TV gun shows.

YouTube is choking the ad revenue out of gun related channels. Google is turning out to be far more evil than Microsoft ever was. Microsoft just wanted to preserve its monopoly. It crushed competitors, not political dissent, and not subcultures. Of course, maybe getting us away from doing this to make money would be a good thing: “The difference between the social media folks and bloggers is the latter owned their content and delivery system. The social media types don’t own and are dependent on the delivery system someone else owns. And it’s their house and their rules.”

More along those lines here.

This might have something to do with trying to stamp out the gun culture via institutions the left controls.

The Federalist: “How The Fourth Circuit’s Support For ‘Assault Weapon’ Bans May End Them” I see a lot of this stuff in Right media. Repeat after me: Gorsuch doesn’t change anything. This was a holding action at best. Whoever is the weak link in the Heller majority is still on the Court.

Everytown and Moms Demand keep floating the figure that ordinary Americans support the permitting system. Well, if you asked me that, I’d think “No” meaning “No, I don’t think people should be able to get licenses to carry concealed firearms,” rather than “No” meaning “I don’t think people should be required to get licenses to carry in order to carry firearms, concealed or otherwise.” I’ve never seen one of their polls that asks the question the right way.

Tam on training and preparedness.

Seriously, I don’t get people who turn themselves in after discovering they got past TSA with a gun. The cops don’t care that you’re good person, or that you did the “right thing” in coming forward. All you’re doing is confessing to a crime. It’s amazing to me this day in age people still believe this kind of fairy tale. If you ever find yourself in such a situation, you’re not going to hold up or hijack the plane are you? No? Then keep your mouth shut, count your blessings, and be more careful next time.

Mike Kelly is throwing his name out there to run against Casey.

Can you believe this is in Slate: “The Second Amendment vs. the Fourth Amendment.

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