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Weekly Gun News – Edition 25

I was worried I wouldn’t get enough tabs for gun news this week, but I think I have enough for a news links post. Things have been busy for me this week, so not as much time to even collect stories. But I do have enough this week to channel my inner Instapundit:

Dave Kopel has some analysis of the decision in Kolbe v. Hogan, which vacated the ruling that had upheld Maryland new semi-auto ban. Also, see Dave Hardy’s commentary.

Eugene Volokh notes that the 11th Circuit has agreed to an En Banc hearing of the “Docs v. Glocks” law in Florida. I share many of the Professor’s First Amendment concerns, but the medical establishment hasn’t exactly covered itself in glory either.

It bears repeating: Not every criminal is going to be intimidated by the sight if your gun. Where some see trouble, others see opportunity.

Yes, next question: Should you carry OC spray? The law generally frowns upon shooting belligerent assholes. Especially if they are women.

Bloomberg is spending big in Nevada for his private transfer ban initiative. Ballot measures should be unconstitutional. They violate the Constitution’s guarantee of a Republican form of government. They also almost always favor the party that spends the most money.

Blue state gun panic: Gun licenses on the rise in Massachusetts. Also in New Jersey.

Analysis True: “Democrats have confused opinion polls with actual voter sentiment on guns for decades, and it led them to defeat every single time.

Anti-gun activists in Ohio are trying for a ballot measure to amend the state constitution to end preemption in the Buckeye State.

In Oregon, they are looking to remove the default proceed on gun sales, and set up a situation where the state could ban all gun sales just by refusing to do background checks, or from sheer bureaucratic incompetence. Not just Oregon, but Delaware too.

In Florida, gun bills are under attack.

Constitutional Carry introduced in Michigan.

Breitbart: Concealed Carry permit fees are an attack on 2nd Amendment rights. I would argue the permit is too.

States by party affiliation. How red or blue is your state? Pennsylvania is listed as “Competitive.”

You probably wouldn’t trust most politicians to babysit your kids. So why do you trust them with bigger issues?

GOA Sides With the Anti-Gunners

Opposition to the McAuliffe deal has been nearly universal on the anti-gun side. Even Bloomberg’s Everytown, which is generally willing to bend to reality much of the time is pretty angry about it. I don’t blame them. If I were in their shoes, I’d be pretty pissed off too if a big issue like reciprocity was traded for the trifle they got in return. It would be like if a Governor we backed agreed to an assault weapons ban in exchange for some extra money for public ranges and more wildlife conservation.

But the fact that the anti-gun groups are engaged in an effort to twist McAuliffe’s arm out of the deal doesn’t stop a group like Gun Owners of America from joining them. They are urging their members to call their representatives and senators to oppose the deal. We’re fortunate that it has passed the Senate, so I’m not certain GOA had too much of a negative effect.

Their logic for opposition relies on two items. The first is that the voluntary checks is just the first step toward making them mandatory. I’ve long said, legislatures can always pass gun control in the future, and we know they already want to ban private transferring of firearms. The key is whether the concession weakens your position and arguments. Hate to tell you all, but when we argued that NICS would be the bees knees, in leu of waiting periods, we already largely made that concession. State police at gun shows to do voluntary checks doesn’t really further weaken our position. The camel got his nose under this particular tent in 1994.

GOA’s other premise is that there’s no state analogue mens rea requirement of “knowingly” in the state mirror to the Domestic Violence Restraining Order prohibitions from the Lautenberg Amendment. Looking at the federal statute, 18 USC 922(g)(8), I’m not seeing where it says knowingly. The Virginia bill does in fact say “knowingly.” I’m pretty sure if you can show that the person knew they were subject of a DVRO, and knew they were in possession of a firearm, the mens rea requirement is fulfilled. I admit, I don’t really understand GOA’s argument here. Proving mens rea is always part of the state’s burden for a serious offense even if the statute does not explicitly say so.

So if this deal ends up tanked, and we lose all that reciprocity, you’ll be able to thank Larry Pratt right alongside Mike Bloomberg, Josh Horwtiz, and Ladd Everitt.

OSHA Targeting Ammo Makers

Joe Huffman has a story, which is a follow up from his previous story about OSHA possibly abusing workplace rules. It is based on someone who works at a major ammo company, talking about how OSHA is demanding warning labels on ammunition:

Then a couple years ago OSHA approached them and said, in essence, “You need to put warning on all your products because indoor range employees are at risk from exposure to lead.”

What?

The lead issue is probably the biggest threat to shooting out there right now. Remember, Obama’s executive orders told every agency to look into ways to screw us. Has OSHA found a way? Or are they merely following the bureaucrat’s creed:

Regulate All The Things

Breaking: Major Win in 4th Circuit Over Maryland Assault Weapons Ban

Finally, judges who are willing to take Heller and McDonald seriously, and offer us serious Second Amendment protections. In short, the lower court had ruled Maryland Assault Weapons Ban was constitutional, having applied intermediate scrutiny. The three-judge panel of the Fourth Circuit Court of Appeals has now vacated that ruling and ordered the lower court to apply strict scrutiny. Note at least one well-known blog is reporting this ruling struck down the ban, but it does no such thing. It merely vacates the lower court ruling and demands the lower court reconsider with the highest standard of review. Though, it is clear from the Court’s language that they do not look favorably on the ban. Here’s a passage talking about “Large Capacity Magazines.”:

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

Finally! A court willing to not only find that they are in common use, but one willing to admit that carries with it serious Second Amendment considerations! Granted, this could still be overturned en-banc, and appealed to the Supreme Court, but if this holds, it will be the end of Maryland’s assault weapons ban. It will be the first instance of an assault weapons ban thrown out by the courts.

Contrary to the district court’s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

That’s a refutation of the substitution argument that Eugene Volokh is all too fond of. Quite a step for the federal courts to take. This is not a finding of unconstitutionality, it should be noted. They have only directed the lower court to apply the correct standard of scrutiny.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district court’s order as to Plaintiffs’ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance. This is not a finding that Maryland’s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court. The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well.

This is still very good. Strict scrutiny is a high level of review. One disappointing thing in the ruling is that they rejected the equal protection argument in regards to exempting retired law enforcement from the ban:

For all these reasons, we affirm the district court’s decision on the equal-protection issue. Retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

There’s that conservative love of law-and-order again. Police can super-citizens. Like you and me, only better. Still, this is a pretty significant win. Let’s hope by the time this bubbles back down and then back up we might have a friendlier Supreme Court.

Now This is Some Spin

Hillary Clinton had Iowa locked up heading into game time. She was ahead of Bernie by twelve points just a few weeks ago. Take a look at RCPs track, and think about when Hillary turned up the gun control talk big time? Last year this time she was ahead by 52 points. Then Hillary started opening her mouth and talking, and as often happens when Hillary does that, she started blowing her lead. She had Gabby Giffords out in Iowa helping her campaign at the last minute. She’s been pushing much more heavily on gun control in New Hampshire, where Bernie is creaming her. Hillary hasn’t been on top in New Hampshire polling since early December. When did those gun control ads start Hil?

Now with all that data screaming that gun control isn’t helping, and may actively be hurting Hillary, “The Trace,” Bloomberg’s media mouthpiece, is trying to argue that gun control saved Hillary. Go ahead and read that wonderfully delusional piece. Careful where you step though.

The threat of OSHA is already here

Sebastian wonders if a firearms-unfriendly OSHA could be used to attack firearms rights. But it’s not a crackdown on firearms-friendly employers that worries me so much as a crackdown on ranges for lead poisoning. Gun ranges are the cradle of gun culture, and we’ve already seen that our most dangerous enemies are attacking our ability to transfer that culture to new people (via “transfer restrictions.”) Most ranges are small-business (or equivalent) operations, which are hard to regulate easily, but easy to stifle by regulation. And the real hard truth is, yes, a lot of ranges are not doing enough to mitigate lead exposure because it’s hard and expensive. The Seattle Times article is a hit piece, but it’s an effective one. And the owners of the ranges highlighted for multiple severe violations are not doing themselves or the cause any good by not addressing the issues.

This is something NSSF and NRA ought to be educating the range owners about, a strong voluntary industry initiative before the smothering hand of government regulation and enforcement descends. (Which they may have started to do. I originally saw the Seattle Times article when Tam went to work at a gun store/range, when someone asked her if her employer was aware of an educational lead abatement program.) We’ve managed to instill the 4 Rules of Firearms Safety as a core value of Gun Culture 2.0; now we need to instill something similar for where to shoot, along with how to shoot. The problem is that a lot of range owner/operators predate Gun Culture 2.0, and it may not be possible to edit this part of the culture until they age out.

Of course, in the end this is another case of “enforce the existing laws.” According to the linked article, some of the highlighted ranges could have been taken down hard for knowing and continuing egregious violations, but they were cut slack and let slide. I have to wonder if nailing a couple of the really egregious examples “pour encourager les autres” would be beneficial in the long run.

Could The Administration Sic OSHA on Gun Friendly Employers?

OSHAJoe Huffman wonders if this is going to be our next fight. I don’t see this as being off the mark, in terms of being something they could do. Recall that his original executive orders asked every agency to have a good hard look at where they could screw us. Joe is right to point out the complications, but they could easily overcome that by allowing business to apply for exemptions, which would of course only be granted to companies in “appropriate industries.”

Of course, there’s a part of me that thinks, “Maybe we shouldn’t give them ideas,” but that conflicts with the part of me that thinks we do ourselves a favor in trying to think of ways they could come after us. That might allow for preemptive measures to remove the topic of firearms in the workplace from the purview of OSHA.

The McAuliffe Deal is Better Than I Thought

Virginia Governor Terry McAuliffeWhen the deal between the GOP controlled Virginia legislature and Governor McAuliffe was announced, it seemed that the deal was to leave the agreements in place, rather than reminding them, but this article indicates that the deal is an exchange for near-universal reciprocity in Virginia. This article has some details:

The deal also pushes back the attorney general’s reciprocity deadline from Feb. 1 to March 1 and will require the attorney general’s office to enter into any reciprocity agreement offered by any other state, removing the discretion that allowed Herring’s unilateral action.

It was argued by some that this wasn’t really a win, because we maintained status quo, while they got something, even if it was miniscule. This article seems to indicate we’ve traded that trifle for near-universal reciprocity, and removal of the AG’s discretion in the matter. Given how pissed off the antis are about this deal, I think this has to be viewed as a net win.

They do note that negotiations are still ongoing, so keep the pressure up.

The Old Gun Culture Asserts Itself

Dave Petzal of Field And Stream didn’t like SHOT show this year.

Range Day is the Monday prior to the Show’s opening when manufacturers demonstrate their wares. People like me are bussed out to handle the goodies. This year, Range Day sounded like the Battle of Dak To, or perhaps Fallujah, with the distinctive pop-pop-pop of full-auto fire, which was extremely popular amongst all the SEAL wannabes. Indeed, this was symbolic of the whole show, which has now become so heavily militarized that you have to look fairly hard for something designed to kill animals instead of people.

Why do people like machine guns? Because they are fun. I mean, I get it to some degree: after you’ve been into guns and shooting for a while, everything that’s new is old again, or derp. I wish I had gone to SHOT back at the beginning of my blogging career, because now all the new stuff out there makes me go, “meh.” But I still smile when I get to shoot machine guns.

And “designed to kill animals instead of people” sounds like something straight out the anti-gun playbook. I’m sure it will be news to high-power shooters, or 3-gun shooters, that their tools of the trade are “designed to kill people.” Every gun is designed to kill people if you put one in the hands of someone interested in that. Remember, that’s not a deer rifle you have in your closet or safe, that’s a high-precision long range sniper rifle. A real man killer. So careful adopting the rhetoric of our opponents, Mr. Petzal.

h/t to KevinC

Terry McAuliffe Backtracks on Reciprocity

The Washington Post is reporting that a deal has been struck between Virginia governor Terry McAuliffe and Republicans. The deal breaks down to this: reciprocity with the 25 states will not be rescinded. In exchange, the GOP controlled legislature will agree to pass a bill with the following provisions:

  • If someone’s Virginia permit is revoked, they can’t use another state’s permit to continue to carry in Virginia. OK, fair enough. I’m not going to sweat that.
  • State Police will be made available at gun shows to run background checks. The checks will be voluntary, not mandatory, so fine by me.
  • Anyone subject to a permanent protective order (PPO) is barred from carrying for two years the order remains in effect. By federal law someone with a PPO can’t have a gun anyway, so I don’t see what the issue is here.

It makes me wonder if holding reciprocity hostage in an effort to get concessions was the plan all along, but McAuliffe didn’t get much of anything here in return, so I suspect they were made to feel their move on reciprocity was… ill considered. I don’t think the plan was to hold reciprocity hostage to get concessions, I think they realized they made a major political miscalculation and McAuliffe was looking for a face saving way out.

If you’re a Virginia gun owner, and were part of the noisemaking operation down there, pat yourself on the back, your governor and attorney general just blinked. They always underestimate us.

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