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The courts have taken us this far, and no farther

It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.

I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?

I infer from the most recent two decisions (King v. Burwell and Obergefell v. Hodges), as well as previous statements and decisions, that Justice Roberts really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience. Meanwhile, the anti-gun justices went 0 for 2 in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.

This isn’t my only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).

At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks and force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.

This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).

Actual Common-sense

Albeit with a side order of a”I’m a gun owner but…” and of course the condescension that the NRA wouldn’t support punishing people who actually misuse firearms, or that the laws he wants generally already exist, or would represent a loosening of the existing laws.

The post proposes (after a lot of political bumph) in a fairly sane way, that the NRA’s safety rules be enacted as federal law and that be it. And, shockingly enough, that safety education be left to a free market, not forced.

Punishing the people who actually misuse a tool, and leaving the innocent users in peace. It’s a radical idea whose time has come, I say.

I can quibble with some of his details (the safe storage requirement he wants is a little too much pre-crimey for me), but it’s a hell of a lot better than anything I’ve seen come out of anti’s recently. And a lot of it should be done by enacting uniform state laws, not action at the federal level. And a lot of his anecdotes would not be changed by changes in law, but by changes in culture – that people be prosecuted for negligent discharges, not allowed to call it an accident and go on. But that’s a problem with drunk driving (his comparison) as well. I have no issues with treating NDs as DUIs, assuming we don’t go to MADD-level idiocy. And he doesn’t mention that the reduction in DUI was achieved not only be increased penalties and enforcement, but by PSAs and other societal education.

Antis Back to Being Disillusioned?

I don’t take E.J. Dionne’s post in the Washington Post as a sign the other side is feeling all that good about things. Once it became apparent gun control wasn’t a hobby horse that anti-gun politicians could ride anywhere after the Charleston massacre, they quickly switched gears and got on the confederate flag hobby horse and took that to town instead. It’s always a good sign when our opponents are admitting that hearts and minds have to be changed before their issue is going anywhere. When I see our opponents whining like this, it’s music to my ears.

Sure, we have “hearts and minds” issues, like legalizing friggin’ machine guns, but I’d much rather than that problem than theirs. If their best argument is that guns will cause you to commit suicide, we should look up and thank our lucky stars, because even objectively, that argument sucks.

Act 192 Overturned by Commonwealth Court

While the news today is going to be all King v. Burwell, I’m sorry to report some more bad news on the gun front. Act 192 has had a short but glorious run, having briefly given teeth to the preemption law passed in 1974. But now Commonwealth Court has ruled that the law violates Pennsylvania’s “single subject” requirement for bills. No word yet on appeal. A few things should be noted.

  • Preemption is still the law in Pennsylvania, just as it has been for 41 years. If you’re busted under a local gun control ordinance, those ordinances are still unlawful. You can challenge them and win. The difference now is it will probably take being charged to have standing to win.
  • The law did a lot of legwork in convincing many local communities to repeal their illegal ordinances. This erased a lot of effort the other side put into passing them. I doubt very many of those communities will re-pass their repealed ordinances. We have to keep an eye out though.
  • Stu Greenleaf bears a significant part of the responsibility for having to attach Act 192 to a metal theft bill at the last minute. He controls the Senate Judiciary Committee these types of bills have to clear through before hitting the floor. The GOP has a 30-20 majority in the Senate. To be honest, I’m thinking about donating money to Greenleafs Dem opponent, even if his opponent is a nut, just to get Greenleaf out of the Senate and to put the Judiciary Committee into more reliable hands.

The real loss here is that the cities that fought may now get their lawsuits dismissed. As long as Tom Wolf is Governor, the only possibility we have for getting this passed again is a veto override, and last time we didn’t have quite enough to accomplish that. [UPDATE: A reader corrects me, and it did pass with a veto-proof margin last time.] Also note that Greenleaf still controls Judiciary, so there’s that issue too. It will continue to be difficult to get pro-gun legislation advanced so long as he is controlling that key committee.

Weekly Gun News – Edition 5

I know we missed the gun news last week, but this week we have some tabs to clear! I’ve also been busy with extreme home brewing. I’ve been wanting to make more lagers. The problem is, I still won’t them very often, and I don’t want to have to buy a whole refrigerator just to lager the occasional lager, nor do I want to use my kegerator and then not have beer on tap for eight weeks while it ages. So what about using one of those big gatorade coolers (which I already have in my equipment inventory) to jacket water around a carboy fermenter? Then cooling the water with a Peltier cooler? Turns out it works, but thermoelectric coolers are a pain in the ass because they a) take up a lot of DC current and b) don’t like being controlled by ordinary thermostats. They need PID control with the output filtered to smooth out the pulse-width modulation. They also don’t like being wired in parallel, which is a problem when you’re dealing with a 15VDC 6A device. So I’m trying to decide between driving the 3 TECs with 3 of these, or one of these, with the TECs wired in series. Or maybe just build my own current source, which is the ideal way to drive TECs. Anyways, enough of that. Here’s the news:

Obama backs Australian gun laws. Remember that Australia engaged in mass confiscation of all semi-automatic rifles and pump-action firearms. At one time, this was considered a losing issue for Democrats. He also condemned the big gun rushes that follow his pronouncements. I would encourage readers to go to your local gun store and disappoint the President.

Add Uber to your list of anti-gun companies. They banned guns for drivers and passengers. I’m sure the criminals will be the first to comply!

John Lott points out what the VPC doesn’t want you to know about justifiable homicide statistics.

Joe Huffman refutes one of the big straw men built up by gun control advocates.

The judge who awarded attorneys fees to Lucky Gunner explains his ruling. LG will donate all the money to a gun rights charity. Please go and vote for a responsible gun rights group. I think it would be a real shame if GOA were to get that money. Might as well burn it.

A surprise to no one, it turns out that compliance with New York’s SAFE Act is practically non-existent. They can erect their utopian laws, but it doesn’t mean we have to go along with their scheme. Even when registration was tried in Canada, the compliance rate was low.

It’s be awfully nice if we could convince people that walking around a Wal-Mart racking a shotgun is, frankly, just being a jerk for the sake of getting people to pay attention to you. One of these days, one of these clowns is going to get his ass shot, and I’m not going to feel sorry for them.

More carrying guns at people.

The killer in Charleston looks to have purchased his firearm at retail and cleared a background check, despite the fact that he shouldn’t have. Our opponents are wringing their hands demanding to know how this happened. Well, you know, government is mostly incompetent even on a good day. Do you wonder why we don’t like relying on the government for our personal security? If they want to do that, fine. But don’t force that choice on me!

It’s open season now that the Supreme Court has basically given the lower courts free reign to ignore Heller. The bill in New York has passed the Assembly.

Puerto Rico has gone constitutional carry, and for purchase, federal law is now what’s controlling, since a court tossed their gun control laws. SAF took this case through Puerto Rico Commonwealth Courts. I don’t know how long this will last, but it’s an interesting development.

Are New York Republicans the biggest impediment to getting New York’s ridiculous knife laws repealed? I can totally believe this. Remember, without Republican cooperation, SAFE would never have passed.

Speaking of Delaware (linked in the previous article), it’s in trouble. The truce is off, and it’s a blue state. Once the blue establishment becomes convinced the gun vote can’t hurt them, you have nowhere to go but down. I hate to be a pessimist, but we are fast becoming two Americas, and the courts aren’t going to do anything to stop it. Worse? Their America is growing.

Meanwhile, in Oregon, activists are trying to show the gun vote can still hurt.

Remember, the media are the enemy. They are bitching about losing access to permit data. Given what happened in New York, they have no room to complain. The media has shown nothing but contempt for gun owners.

Martin O’Malley is still a git. I think Bernie Sanders is probably a bigger threat to Hillary.

Bill Clinton: “You can’t have people walking around with guns.” Does that include his armed security detail? No. Of course it doesn’t.

An old lady who worked Intelligence in WWII died, and they found she was still keeping a Sten submachine gun in her house.

Charles C.W. Cooke takes Obama to task for his gun control proposals, none of which have a thing to do with the Charleston shooting.

Colt: Free to a good home! Only comes with hundreds of millions of dollars of debt!

Ace on NRA’s “Extremely Strong Grip” on Congress: “Obama’s real enemy is now, as it as always been, a powerful special interest lobbying group called The Majority of American Citizens.

In New Jersey, if your spouse is a prohibited person, you are too.

Off Topic:

Is the New Deal in trouble? We can dream, can’t we? The Supreme Court has done the right thing for raisin growers.

Ace describes Obama’s technique of trying to channel “stray voltage.”

Guest Post: CeaseFirePA – So Small They’re Almost a Rounding Error

Introduction (By Sebastian). I’ve decided that since I’m having more spouts where I’m unbelievably busy these days, I would start taking guests posts from readers who had some writing skills and something to say. If you’d like to take a stab at your own guest post, contact me via e-mail (address on the sidebar) and tell me a bit about what you want to write. We can do submissions anonymously, or with credit. Your choice. This article is from a reader who asked to remain anonymous.


RocketWe recently had a chance to look at CeasefirePA’s financials. The only conclusion you can draw from them is that CeasefirePA is not nearly as mainstream or well supported as they would have anyone think.

Every non-profit is required to file an IRS Form 990 and to make that form available for inspection. Many can be found on the Internet at sites like www.charitynavigator.com or www.guidestar.com.

CeasefirePA, dutifully filed its forms and we got copies of their filings from 2012, 2013 and 2014.

Like the NRA, CeasefirePA has two different entities, a 501(c)(3) non-profit that is also a charity (to which contributions are tax deductible) and a 501(c)(4) political entity (to which contributions are not tax deductible).

According to CeasefirePA’s 2013 Form 990, their Education Fund – their charity – received 605 individual donations totaling $71,000 in all of calendar year 2012.

By comparison, in that same year, NRA had nearly 200,000 paid members in PA.

To understand how much bigger NRA is in PA alone, Veteran’s Stadium in Philadelphia once held 71,000 people. Lincoln Financial Field holds 69,000 people. The Wells Fargo Center holds 20,000 people for basketball. Citizens Bank Park where the Phillies play holds 43,500 people. NRA’s paid Pennsylvania membership could simultaneously fill all of these facilities to capacity while CeasefirePA’s 2012 paid membership could barely fill your local Cheesecake Factory restaurant.

Collectively, in 2012, CeasefirePA’s board raised $3,000 – a pittance for a board. Most of the rest of their funding (then and now) comes from liberal foundation grants (Heinz, Joyce, William Penn).

In more recent years, they have raised more from their board, but still nothing compared to NRA.

Fast forwarding to calendar year 2013, CeasefirePA reported that they received donations from 766 people totaling $58,280. That’s 161 more people than in 2012. In total. Across the Commonwealth. That’s nearly 2.5 new supporters per county in PA or .79 new paid members per PA General Assembly House District. Way to go! Literally.

In their Form 990s, CeasefirePA tries to make up for this pitiful number of paid members by talking about how many people they send e-mails to – 30,000. Even there, however, NRA’s efforts swamp CeasefirePA’s.

In the 2012 election cycle NRA’s political arm (NRA-ILA) dropped a 715,000 person mailing – physical pieces of mail – to support gun friendly candidates. That mailing reached about 8.5% of the Commonwealth’s 2012 registered voters. And that was just one of the NRA’s activities in Pennsylvania that year.

Next time you meet one of your state legislators, ask them whether they’d rather side with the 766 or the 200,000.

Time: “Gun Control Stricter in 1920s and 1930s”

ThompsonSubmachineAdAnti-gunners are busy spreading this story around, about how the gun laws of the 1920s and 1930s were more strict than they are now. I’ll call that bluff. If they really believe that, then let’s introduce a bill in Congress that takes us back to the gun laws of the 1920s and 1930s then? Repeal the Gun Control Act and subsequent amendments in its entirety? Where do I sign up? Hey, let’s pick a year in the 1930s. How about 1932? That would get rid of the Federal Firearms Act of 1938, and the National Firearms Act of 1934. Basically, in 1932, there were no federal gun laws, except that you couldn’t ship a pistol by US mail without a license. Or maybe the 20’s instead, say 1922? In 1922 there were no federal gun control laws whatsoever. Let’s just list some of the things we could do.

  • Up until 1968, you could mail order a rifle. Up until 1927, you could mail order a pistol too. After that 1927, you needed a license to mail order a pistol though the US mail, but you could still do it via other carriers without a license, and doing so was common.
  • Sears was a big seller of firearms via the mail order.
  • Firearms could be purchased cash on the barrel. No background check, no forms. Up until as late as 1938, dealers didn’t even have to record sales.
  • Machine guns could be mail ordered until 1934. After that, they still could be as long as you paid the transfer tax and the gun was registered.
  • Soldiers could bring back rifles, pistols and even machine guns as late as 1968, as long as they registered them and paid the tax.
  • After 1938 and before 1968, a Federal Firearms License cost $1. The only requirement was that you keep an acquisition and disposition record. No form 4473. Prior to that anyone could get into the gun business, no questions asked.
  • Until 1938, it was legal to sell a firearm to anyone. Classes of prohibited people didn’t exist until the Federal Firearms Act of 1938.
  • In the 1920s, only a handful of states had any gun control laws, and those that did weren’t much more numerous than the states that have even worse gun control today (and they were in many cases the same states)
  • There were no federal laws restricting firearms to young people until 1968.
  • Firearms were not required to have serial numbers until 1938.
  • Until 1934, there were no restrictions on suppressors, short-barreled rifles, or short-barreled shotguns.
  • As late as when Antonin Scalia was a teenager in the 1940s and 1950s, you could openly carry a rifle on the New York Subway without anyone batting an eye. How’d the antis like to go back to that culture?

Of course, most states by then had restricted concealed carry, but you could still carry openly in most states without a license. In the 20s and 30s, what prohibitions on carry that existed were not uniformly enforced in many states. Either way, those are state issues. It’s absolutely ridiculous to argue that the 1920s and 1930s guns were more regulated than today. The market was a relative free-for-all compared to the restrictions we have today. Hell, I’ll even offer to go back to the federal gun laws of 1965! How about that deal?

These people really can’t be taken seriously most days of the week. The notion they are floating here is absolute pablum, and that’ll be evidenced by the fact that no one on the other side, in their right mind, would take me up on this offer. The majority of federal gun controls we have in this country came with the Gun Control Act of 1968 and subsequent amendments. Then, as now, most states are permissive except a small number of states where gun control is popular. The only thing they’d really undo is the gains we’ve made in reversing concealed carry limitations, and I doubt any of them would make that trade.

Department of State Comments on ITAR Rule Changes

The proposed ITAR rule changes impacting free speech aren’t quite getting the media coverage we need to get the word out to our people, and this has me concerned. This article that appears in Defense Trade Law seems to agree with our interpretation that the proposed rule change is very broad. I’ve seen a few different opinions on this topic in the comment section over at The Firearm Blog’s post on the topic (in addition to a few trolls). The State Department had a press conference last week where the topic of their proposed ITAR regulations came up.

 

QUESTION: Did you get an answer the question I asked yesterday about these ITAR – revisions to the International Trafficking in Arms Regulations?

MR RATHKE: I did. I’m happy to go through that, if that would be helpful. You asked yesterday, Matt, about a June 3rd publication in the Federal Register by the State Department of proposed changes for public comment to several regulatory definitions under the International Traffic in Arms Regulations. These proposed changes in definition are part of our broader effort to streamline and modernize a Cold War-era regulatory system to better safeguard against illicit attempts to procure sensitive U.S. defense technologies.

These proposed definition changes – which, as I pointed out, are out for public comment – they seek to account for technologies that were not envisioned when the regulations were initially developed. Otherwise these definitions are intended to be a clarification of existing law and regulations, technical data, and detailed schematics that are required for the manufacture or production of defense articles already require U.S. Government authorization before they can be disseminated by U.S. manufacturers.

Now in contrast, general descriptions, public discussions, and imagery of defense articles, including firearms, have never been the subject of – to these regulations and they would remain unaffected under these proposed revisions. As I said at the start, they were published in the Federal Register for public comment. That’s a period that runs through August 3rd of this year. So I’d refer people to the text of the Federal Register notice for details about providing —

QUESTION: Okay. So these rules would not apply to private citizens, only to manufacturers – and only to highly sensitive technical details? Is that —

MR RATHKE: They apply to the technical data and detailed schematics for the production of defense articles.

QUESTION: So they don’t apply to private citizens.

MR RATHKE: Well, they apply to anything that relates to those areas of subject matter, whether discussed by —

QUESTION: Okay. Well, the concern that had been raised by the Second Amendment groups is somehow this is going to restrict or stop or ban discussions about gun – about firearms —

MR RATHKE: Well, I go back to the – also the point that general descriptions – that is general, not technical and detailed ones – general descriptions or public discussions and imagery of defense articles would – have never been subject to these regulations and wouldn’t —

QUESTION: So the concern that has been expressed is misplaced, yes?

MR RATHKE: Yes, that would be our view.

Okay, anything further? Thank you.

QUESTION: Thank you.

None of us ever thought just a picture of a gun or “general descriptions or public discussions and imagery of defense articles” was going to get us in hot water. The issue is a lot more complicated than that. It’s become pretty apparent to me on reading and re-reading this proposed rule change, and the existing ITAR rules, that this is targeted squarely at 3D printing, CNC milling, and Cody Wilson more specifically.

Notice when asked whether it would apply to the public at large, he basically concedes the issue. The big problem is that previously, we were all protected by the public domain exception to the rule. I’d encourage everyone to follow that link, and note subsection (b) which is reserved. This public domain exception is obviously dated in the Internet age, but it’s pretty apparent if one publishes the information through “unlimited distribution” that material is the public domain. Now, for the reserved subsection (b) The new proposal spells out what is to be done with it:

(b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from:

(1) The Directorate of Defense Trade Controls;

(2) The Department of Defense’s Office of Security Review;

(3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or

(4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.

By my reading, if you shared a straight-up CAD drawing of an AR-15 or 1911, you’d be fine because those designs are already in the public domain. However, if you developed your own wildcat load for a cartridge, or you came up with a novel design for a rifle, pistol, shotgun, scope or accessory, or you created a modification to an existing design, you’d have to seek clearance from the State Department prior to publishing it. It’s going to be exceedingly difficult for people who aren’t lawyers to understand the difference. My opinion is that this rule is meant to stifle people’s ability to discuss gun making with 3D printers or CNC milling machine’s online, due to the legal complexities and risks involved in doing so. Despite the fact that we shared no CAD drawing or plans in our experimentation with this technology on this blog, I still do not know whether my posts on the subject would fall under ITAR pre-clearance or not, and I’m a good bit more legal savvy than most hobbyists.

Connecticut Senators Push Federal Gun Licensing in Senate

Isn’t it widely accepted that Al Gore’s position on licensing gun owners was a big reason we ended up with President George W. Bush rather than President Al Gore? Now Bloomberg and Obama have sold the Democratic Party that gun control is a winning issue again! That must be why Connecticut’s Senators have floated a bill requiring licenses to purchase handguns nationwide.

This probably won’t gore their ox, since I doubt there’s too much risk for either of them to lose their seats over the gun issue in Connecticut. This will only get worse as the hard core owners flee the Nutmeg State for freer pastures. But it certainly isn’t going to help the Democratic Party brand itself to successfully compete in places where gun rights are an issue.

Language of “Lawful Purpose and Self Defense Act”

Here’s the text of the bill. You need to have the Gun Control Act portion of the United States Code in front of you to understand what it does. It also makes some changes to the NFA‘s definition of Destructive Devices to offer more protection for shotguns. A lot of striking and replacing sections of code. It would seem that everything is as advertised from what I presented yesterday, but I thought I’d go into a bit more detail as to what the bill does.

Section 1 lays out the title of the act, the “Lawful Purpose and Self Defense Act.”

Section 2 clarifies the language of the armor piercing ammunition law to make it clear that it only applies to rounds designed to be used in a handgun, rather than “may be used in a handgun.” This should stop ATF’s practice of reclassifying rifle ammo as “armor piercing” just because someone makes a handgun for it.

Section 3 deals with importation. It pretty much does what the section heading says, and allows any non-NFA firearm or non-armor piercing handgun ammunition to be imported without regard for whether it’s suitable for sporting purposes. Except there’s a part that deals with an obscure section of the Gun Control Act that allows FFLs to ship firearms (except undetectable firearms) to troops overseas or their affiliated clubs. Currently this is subject to a “sporting purposes” restriction, and this section eliminates that.

Section 4 relates to the National Firearms Act. Shotguns, having a bore diameter greater than 0.5 inch, and many big game rifles chambered in greater than 0.5 caliber, avoid being classified as destructive devices solely through classification by the Attorney General that they are “recognized as particularly suitable for sporting purposes”. It changes the language from ‘‘recognized as particularly suitable for sporting purposes’’ to ‘‘recognized as suitable for lawful purposes.’’ Personally, I would have rather solved this by raising the 0.5″ limit to 1.0″ and be done with it, but there’s no arguing that the proposed language is much improved.

Section 5 does pretty much what the section heading says. You have a bunch of language in 18 USC Section 922 that allow for temporary interstate transfers for “lawful sporting purposes.” This goes through and eliminates “sporting” and just makes it “lawful purposes.”

Other than the NFA language still leaving a bit of wiggle room for future Attorneys General to abuse, I’m pretty happy with this bill and think it should be supported. Expect the other side to raise the long dead specter of the infamous “street sweeper” which the gun control movement fear mongered over in the 1990s. This cuminated in Lloyd Bentsen reclassifying the Striker as a destructive device in 1994. This bill would arguably provide grounds for challenging that classification.

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