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Celebrating Independence Day

FireworksLaws

Here’s a handy guide to the Fireworks laws of the 50 states.  Pennsylvania’s fireworks laws are strange because we don’t regulate possession or use, only sale. You can sell fireworks if you have a license to do so, but you can’t sell fireworks, other than the kid’s stuff, to a resident of Pennsylvania. There are a lot of fireworks stores on the Pennsylvania side of the river that specialize in selling fireworks to New Jersey residents, who, of course, ignore their state’s draconian fireworks ban. Buy too much in New Jersey, and it’s possession with intent to sell, and it’s a felony. People have been busted for it. Otherwise possession or use is a petty offense, basically just a fine. New Jersey authorities don’t like you celebrating freedom, comrade.

As Glenn Reynolds noted, fireworks bans “were the entering wedge of nannyism.” Of course, since our federal overlords banned the really fun stuff, I’m not sure how much of this matters anymore.

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).

Brady Loses Another “Bad Apple” Dealer Suit

This was the case in Alaska, where a guy came into Rayco Sales gun shop and stole a gun when the dealer had his back turned. Remember that the Brady Campaign are preying on grieving families by backing their filing of these meritless suits:

“The family is crushed,” Mark Choate, co-counsel for the Kims, told the Empire. “… There was so much evidence that showed there was something being hidden about (Coxe’s) behavior.”

I feel sorry for those people, but the odds were very much stacked against success from the beginning. Their grief was exploited by a gun control organization that is struggling to find relevance in a movement increasingly centered around Mike Bloomberg and his fat wallet.

Choate said even though the jury found Coxe did not sell the weapon to Coday, it doesn’t mean Coxe wasn’t negligent. But a federal gun law — called Protection of Lawful Commerce in Arms Act, or PLCAA for short — shields guns dealers and manufacturers from claims of gross negligence, he said.

At first I thought he was wrong about PLCAA covering gross negligence, but it only exempts negligent entrustment and negligence per se. That means they had to prove that Coxe violated a statute or regulation, and couldn’t just argue that overall, he was a sloppy dealer. They jury did not find Brady’s argument credible. Negligence and gross negligence is a more subjective standards, which is probably why they were not exempted. Find the right jury, and they might be willing to side with a plaintiff on those claims even if they are meritless.

This was the Brady Center’s best case, and best hope for a victory, and it’s now gone down in flames. PLCAA is not quite a brick wall for the Brady Center, but it’s certainly harding up very quickly.

DC Concealed Carry Dealt a Blow

It looks like the May 18 decision that ended Washington DC’s “good reason” provision to approving concealed carry licenses is now on hold.

The U.S. Court of Appeals on Friday evening stayed a ruling that had overturned a key provision of the District’s concealed carry law, giving city officials a legal reprieve and opportunity to prepare an appeal arguing that the law is constitutional.

That means anyone rushing out to apply will now have to fit the criteria in place as of early May.

In NJ, it is the law to delay

One of the pieces of conventional wisdom you hear in New Jersey gun ownership circles is that the NJ Judiciary gutted the 30 day requirement for issuance of a pistol purchase permit or a Firearms Purchasers ID Card, but you never get a reference to the case in question, or the details. So, spent a few minutes googling, and after running my search, I found this case.

We read the statutory scheme as requiring a chief of police to withhold action on an application for a firearms purchaser identification card until receipt of the requisite SBI and FBI fingerprint reports.

We thus conclude that the inability of the chief of police to obtain the requisite SBI and FBI reports within the thirty day period constitutes “good cause” for a denial, but does not require the chief of police to deny the application on that account. He must withhold rendering a decision on the application until the fingerprint reports are obtained from the SBI and the FBI.

If the reports so obtained do not disclose a criminal conviction or any other disqualifying disability, the “good cause” for the denial of the permit evaporates, and an identification card must be granted immediately. Conversely, if the SBI or FBI report yields information disclosing good cause for the denial of a permit, the applicant should be notified in timely fashion.

So, the Berlin Township’s Chief of Police saying that they hadn’t received the fingerprint results means he was required to not issue under this decision. So, all the armchair lawyers who are suggesting 1983 suits, please don’t. It’ll be an expensive waste of time. Instead, push the NJ legislature to go to NICS.

Victory for Henderson in Henderson v. United States

The unanimous opinion written by Justice Kagan can be found here. In this case, Tony Henderson was convicted of drug offenses and became a prohibited person under 18 U.S.C. § 922(g). He petitioned the FBI to turn his firearms over to a third party of his choosing. The FBI refused, arguing that he would remain in constructive possession. The FBI took the position that the guns could only be transferred to a Federal Firearms Licensee that would then sell them on the open market. Fortunately for Henderson, the Supreme Court was not persuaded by the government’s arguments. The Court holds:

Accordingly, a court may approve the transfer of a felon’s guns con- sistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself inde- pendent of the felon’s control, for subsequent sale on the open mar- ket. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon’s transfer request. Pp. 3–8.

So provided the third party assures the court that he will not allow the prohibited person to exercise possession or control over the firearms, a prohibited person may delegate a third party.

Even in NJ, we can win some

Evan Nappen gets a judge to rule that the law means what it says.

In a published decision binding upon all New Jersey municipalities, the New Jersey Appellate Division has confirmed that New Jersey municipalities may NOT require added forms for firearm permit applications beyond the state forms.

It’s a little thing, but little things add up. Also note, “funded in part by the NRA Civil Rights Defense Fund.”

Peruta Goes En Banc

According to legal sources, it seems the Ninth Circuit has issued an order for an en banc hearing in Peruta. It might be the bit of pessimist in me, but I doubt this is good news for gun owners in the Ninth Circuit.

National Firearms Law Seminar

If you’re an attorney or just interested in firearms laws, then you shouldn’t miss the National Firearms Law Seminar at the NRA annual meeting.

I have to say that this year’s program really stands out for the combination of nationally known speakers, as well as the practical topics covered a bit more in-depth by some of the lawyers working on Second Amendment issues you may not have heard about yet.

For one, the lunch speaker is Glenn Reynolds of Instapundit fame. Having heard him speak before, I can say that he always delivers a really good presentation that informative as well as entertaining. The program notes that his lunch speech will look at “the transformation of the Second Amendment from an ’embarrassing’ outlier to the Bill of Rights, to a provision that, like other parts of the Bill of Rights, protects identifiable individual rights in court.” Massad Ayoob will be giving a presentation on armed self-defense, highlighting mistakes “by the shooter at the scene, and by defense counsel in court.” That should be quite interesting, even for the non-attorney.

In my opinion one of the most interesting topics looks like it could end up being the session on the Brady Campaign’s recent litigation strategy against individual FFLs. The description of this talk by Cord Byrd notes that they have been “utilizing state laws including negligent entrustment, negligence per se and public nuisance to circumvent the protections afforded by the Protection of Lawful Commerce in Arms Act.” Then you have the always wonderful Sarah Gervase who packs so much practical information for attorneys into her topics each year talking about civil rights actions in firearms cases for this year’s Nashville seminar.

Registration is online, and there are discounts for various folks – law students, those who only want to attend the lunch speech by Glenn Reynolds, just a half day, and even for non-attorneys. There’s pretty much no way that you won’t walk out of the sessions learning something new if you choose to attend.

Even as someone who isn’t a practicing attorney and who doesn’t do the legal analysis for the blog, there’s usually something I pick up that gives me so much more context and understanding about the cases we hear about during the next year. More importantly, as I’ve met many people who maybe had a little minor offense, often nothing related to firearms at all, when they were 18 who are still paying a penalty with their firearms rights when they are 68 over the years, I’ve realized how invaluable it is that defense attorneys should know at least something about this area of law and how it impacts their clients.

Two More Favorable Court Rulings

Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms. This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe Huffman for the tipoff.

The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.

The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunate tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.

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