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Perry County Finds Itself in Hot Water Due to Audit

There’s an interesting situation going on Perry County, Pennsylvania. Auditor Kimberly McMullen may have put the county in some hot water due in a recent interview.

First, she’s demanding permission from the County to spend $6,700 in legal fees to have lawyers research whether she’s allowed access to the confidential files of license to carry holders. (The sheriff won’t hand all of the records over because he notes that that it’s against the law to release the personal information.) The County gave her $2,000 to pursue it instead. Second, she told the media that the law supposedly changed last year and that she would have had access before that “change.”

Well, attorney Josh Prince is doing the taxpayers of Perry County a favor and helping them save $2,000 on legal research. He sent a letter to the auditor making clear that the license to carry applicant information is not to be released to her.

However, McMullen’s claims that the records were available in previous years caught Prince’s attention since he noted that the section of law he cited hasn’t changed since 1997. Oops. McMullen may be regretting that claim since Prince included this little gem in the letter:

Thus, the confidentiality of firearms license information is nothing new and the County and its respective Departments, employees and agents are liable for any disclosures that have occurred. Based on your statement to reporter Sean Sauro that prior to a year ago, all this information was available via right-to-know law requests, I am requesting all information on previous LTCF applicant disclosures by the County and its respective Departments, employees and agents.

So, sorry Perry County taxpayers. Because your auditor doesn’t know the law, now you have to spend resources going through all paperwork to see if the confidential information has ever been released before. Oops.

“Maybe it was the phony penises.”

That was not the first sentence I expected to read when I opened up an article about a gun club lawsuit in federal court. Regardless, it was the opening sentence, and it was an accurate description of one of the issues raised in a lawsuit filed by members of the Philadelphia Gun Club against animal rights activists who are accused of “stalking, harassment, trespass, intimidation, defamation, libel and privacy invasion.”

The club’s attorney says that the activists have researched personal lives of club members to leave fake reviews on Yelp and other sites when those people own small businesses. They also reportedly spy on these people even after they leave the club grounds. The guys who shoot at the club are not public figures, so there’s a pretty good case there. Not to mention, leaving a fake review online is an issue that’s gaining traction in courts around the country.

Local Improvements in Gun Laws

Firearms attorney Josh Prince recently sued Erie, PA when they enforced a local ordinance banning guns on some of their town property in violation of the state’s preemption law. While it may seem like a small effort for gun rights, it did apparently scare the leaders of a town 432 miles away into not only stopping a march toward banning guns on government property, but also repealing old laws in violation from the books. (h/t to Josh Prince)

The New Way of Thinking about Law

I have to strongly recommend, as odd as it might sound, this post over at Free Range Kids for some interesting reading on the way one mother believes many Americans view the use of laws, specifically registry laws. The post has nothing to say about guns or gun laws, but I think it’s very insightful and applies to many of the ways that anti-gun advocates view gun laws, even when they know they won’t work to reduce crime. Here is a sample, but you should go read the whole thing:

I think what we’re really seeing here is just our country’s punitive mindset. It’s like we cannot imagine any way to express to somebody that we don’t like what they are doing except for calling it “abuse” and putting them on a registry. …

The point of laws should be public safety, not public humiliation, but more and more of our laws and moving in the direction of seeming to be more about shaming and humiliating and branding people who made decisions we don’t like rather than actually protecting the public from truly dangerous people.

I think the Connecticut gun owner registration picture we saw is a great example of how this works in our issue. Law enforcement officers know that the person who is going to use a firearm to rob or murder a person isn’t going to register it. They also know that they are unlikely to catch them with the unregistered firearm before (or during) the crime. But, this kind of perp line is designed to shame the gun owners who are not dangerous and pose no threat to society. Even better for the anti-gun advocate is the fact that creating such a scene makes it easier for them to judge and try to shame the non-threats over the simple fact that they disagree with the decision these men and women made to own guns in the first place.

If the oppressive laws keep you from buying more guns or send you packing out of the state, well, that’s just even better from their point of view. Now they can try and shame you without actually facing the consequences of such a decision or having people challenge them to what it means.

As I said, the letter at Free Range Kids has nothing to do with gun laws, but I think it does accurately represents the way that many voters now think about how they would like the force of law to work. The letter published there does a great job of highlighting ways that the slippery slope of this way of thinking could end up making you a criminal on a public humiliation registry for just about every common decision that someone somewhere might not like.

The Legalities of the New Executive Order

Mosin-NagantI’m seeing some confusion circulating among people in the blogosphere and on social media as to the effects of Obama’s executive order on reimportation. It should be noted that this would only apply to a small subset of firearms that were sold to foreign countries. Ordinarily, military arms are illegal to import into the United States unless they are determined by the attorney general to be “particularly suitable for sporting purposes,” which the Attorney General has since 1989 (via another executive order) interpreted to mean only suitable for hunting. However, there’s a provision of the Firearms Owners Protection Act of 1986 that made it legal to import any firearm that is a Curio and Relic, regardless of its sporting purpose suitability. This means anything that’s on the C&R list, or anything more than 50 years old is importable by law. This EO won’t do anything to affect the import of surplus military arms that originated overseas, like the Mosin-Nagant, Enfields, or Mauser. Even the M1 Garand and M1 Carbine are C&R, and are therefore blanket importable, regardless of what the Attorney General may want to determine about its sporting purpose.

But by law the State Department gets to have a say when it comes to weapons that have been exported by our government to foreign governments. If those governments wish to dispose of those firearms by selling them to private importers in the United States, they have to have sign-off from the State Department. That’s where this EO comes in. Basically, the Korean government still has a lot of M1 Carbines and M1 Garands sitting in warehouses that they’d like to sell to US collectors or to the Civilian Marksmanship Program. The Obama Administration has been unwilling to sign off of any of these re-importations to date. All this executive order does is make that official policy. In short, it doesn’t actually change much from the status quo. Without the requirement for State Department signoff, those M1s would be legal to import without any permission from the US government.

It’s still a dick move by the Obama Administration, but don’t feel like you need to go scrambling through your sofa cushions for loose change to go panic buy all the Mosin-Nagants you can get your hands on. Those are safe.

Local Elections Matter

In Pennsylvania, we elect our judges. This can be a good thing, or it can be a bad thing. One of the biggest issues is the fact that even the most informed voters often know nothing about the judges on the ballot before them. Add to that the fact that these judges are elected in off-year elections with very low turnout, and it’s both an opportunity and an uphill battle if you want to see meaningful change in the justice system.

Consider the case in Erie right now. Erie 4th Ward District Judge Tom Robie isn’t on the ballot again until 2015. He last won in an unchallenged race in 2009 with the support of both parties from the looks of one of the election results pages I found. Unfortunately for the citizens of Erie, that may not be such a good thing if Judge Robie’s reported actions in a recent gun possession case are any indication.

Pennsylvania has a pretty clear preemption law that doesn’t allow local governments to regulate possession of firearms by law-abiding citizens. The City of Erie violated the ban and passed their own ban on possession in city-owned parks. Several men were cited in violation of this illegal ordinance. And, according to social media posts by those involved in the case, the judge decided to find them guilty of violating the illegal ordinance anyway, despite the case law on the subject. I haven’t found a news story about the decision yet, but here is one with better background on the case.

For purposes of legal action, these guys can clearly appeal and hope that, at some level, they get a judge who cares about actually making sure that the laws are followed by both the government agents and citizens. However, even if that happens, the judge who ignored the case law on the issue gets to enjoy the perks of his taxpayer-funded job with few people caring that his cases may end up overturned because he appears to have opted to ignore the state’s preemption law and related established case law.

For election purposes, this is a great opportunity for local gun owners to get involved with local parties and start finding a replacement for Judge Robie on the next ballot. They can find him a primary challenger from either side. So, will local gun owners pick up this cause? It’s a long way to 2015, but since they need to find a candidate willing to take on this judge, the process needs to start early. But, if local gun owners would be willing to take up this cause, then it can send a clear message to many more local politicians – judicial or otherwise.

Minor Federal Court Victory

It seems shocking that it would take a federal appellate court to remind prosecutors and district judges that the prosecution should have to prove all elements of a crime in order to gain a conviction, but such is the case of US v. Fries, which essentially rules that prosecutors don’t get a pass on whether or not the parties involved in an unlawful interstate transfer had FFLs or not. They have to prove they did not. From the Annual Law Seminar Facebook page:

This case was supported by the NRA Civil Rights Defense Fund.

A win in the 11th Circuit Court of Appeals involving an undercover ATF investigation at a gun show. The government carries the burden of proof in this statute.

“The plain language of § 922(a)(5) clearly requires the government to prove, as an essential element of the offense, that neither the defendant nor the nonresident to whom the defendant allegedly transferred the weapon possessed an FFL at the time of the transfer.”

I say it’s a minor victory, because it just seems obvious. If this had gone the other way, the courts would have essentially rewritten the law to create a new crime that Congress did not. A minor victory, but one that avoided a major loss. What’s shocking is how many anti-gun people don’t think we have any kind of point with this stuff. The ATF and the US Attorneys can do no wrong, and there’s nothing too horrible that can be done to the American Gun Owner if it helps save the life of Just.One.Child.

More on the Zimmerman Jury

As the trial kicks into gear this week, Legal Insurrection has a very detailed look at the jurors and how they answered questions during the jury selection process.

I have to say that if I didn’t think this was a case of prosecution via mob justice instead of hard evidence of a crime, I would almost feel sorry for the prosecutor. Almost all of the jurors are noted for their understanding of the burden of proof beyond a reasonable doubt.

Most of the jurors are pretty hostile to the media and admit that they don’t trust them or what they hear in the news. Several have experience with firearms, including one woman who used to have a concealed carry permit. If you really read the whole post, it’s not the gun experience that makes me think Zimmerman has a chance to seriously make his case to this jury. The comments about understanding beyond a reasonable doubt and standing up to people causing harm to innocents that make me think the State is going to have an uphill battle.

And that’s exactly how it should be. The burden is on the government to prove a crime was committed and that the case was not lawful self-defense.

By the way, I find it amusing that two of the white women the State wanted kicked off are women who recalled that Zimmerman claims to have been injured in the struggle, and they also don’t believe that circumstantial evidence is grounds to convict. Yeah, damn those women who might be open to considering both sides and believe that the State should have to provide evidence beyond a reasonable doubt! Those pesky citizens make the life of a prosecutor so hard…

The 16th Annual National Firearms Law Seminar

We’re attending the Firearms Law Seminar today. This is an annual event that is organized by NRA’s Office of General Counsel, and counts for CLE credits for all the lawyers in the room. Sarah, who is one of the organizes and presenters today, said about 200 or so people were expected. The topics covered today:

  1. The Justification of Self-Defense
  2. Protection of Sport Shooting Ranges
  3. Misdemeanor Domestic Violence Convictions
  4. Advising and Representing FFLs
  5. New State and Federal Legislation
  6. The NFA and Gun Trusts
  7. Federal Firearms Disqualifications and the Restoration of Rights
  8. International Treaties and Agreements

Dave Hardy won’t be presenting this year, so we won’t have any Carthaginian war elephants in the presentations, as an example of what might be a “dangerous and unusual” weapon. At least I don’t think.

NRA v. BATFE Loses Appeal in 5th Circuit

This is the case challenging the prohibition on 18-20 year olds being able to purchase a gun from a federally licensed dealer. You can find the opinion here. I haven’t read it in detail, because it’s rather lengthy, and I don’t have time. But skimming through the opinion, I think the Circuit Court seems to have done a combination of analysis through history and tradition, like we saw with Judge Kavanaugh’s dissent in the DC Circuit in Heller II, and intermediate scrutiny analysis. I wouldn’t go so far as to suggest the “Intermediate Scrutiny Two-Step” is at work here. This is what I have dubbed the practice of relabeling rational basis review, or something only slightly more rigorous, as intermediate scrutiny, in an attempt to uphold a favored law with a minimal burden put on the government, in terms of justifying the restriction. But I do want to take a look at some parts of the opinion that jumped out at me:

In the view of at least some members of the founding generation, disarming select groups for the sake of public safety was compatible with the right to arms specifically and with the idea of liberty generally.

This may be true, but what does it really tell us? Large numbers of the founding generation also thought chattel slavery was compatible with “the idea of liberty generally,” but changes in the Constitution since then have rendered many of these ideas moot. Granted, it shows us that the founding generation understood some controls over arms were acceptable, but it tells us little about what kinds of restrictions are acceptable. Are minors among “select groups” which can be disarmed “for the sake of public safety?”

Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18. See, e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law is a person under the age of twenty-one years, and at that period . . . he or she is said to attain majority . . . .” (quoting John Indermaur, Principles of the Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The common-law rule provided that a person was an infant until he reached the age of twenty-one. The rule continues at the present time, though by statute in some jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray on Contracts § 12, at 18 (2d ed. 1974))); see generally Larry D. Barnett, The Roots of Law, 15 Am. U. J. Gender Soc. Pol’y & L. 613, 681–86 (2007). If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to- 20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms.

That’s what the analysis should hinge on: is the age of majority 18 or 21? If the answer is 21, then the analysis can proceed from there. But I think you’d find precious few laws restricting the purchase, possession, or bearing of arms by juveniles during the time the Bill of Rights was framed. The Court essentially admits that:

To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.

I don’t think mere existence of some kinds of restrictions in historical record necessarily ought to mean that restriction is presumptively constitutional. I believe finding an analogous law in the historical record, and declaring the restriction constitutional, is lazy. A law, for instance, barring permanent residents from their right to keep and bear arms might find analogues in laws which prohibited loyalists, but because of the changes in the Constitution since those times, such a law should not withstand any level of scrutiny in modern times. I don’t think the existence of such laws inform us of much, other than many in the founding era shared many of the irrational prejudices held by people today. Also, you can find in the historical record, laws prohibiting selling or trading guns with Indian Tribes, which may have served a “public safety” purpose at one time, but that’s not to suggest it would still serve the same purpose now.

Nor do I don’t think the fact that a law existed, and has been longstanding, should be sufficient as to deem any such law constitutional. This is the “tradition” part of “history and tradition.” The Sullivan Act is both historical and longstanding, but is it common practice or an outlier? It would be hard to argue that something practiced by half the states, and upheld by numerous state courts, is an outlier. Something practiced by only small number of states or localities is an outlier, and not part of our general tradition on regulation of firearms. How many states require a license to own a gun? I can think of five? Maybe six. The Circuit Court points out:

Arms-control legislation intensified through the 1800s, see Cornell & DeDino, 73 Fordham L. Rev. at 512–13, and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or restricting the ability of “minors” to purchase or use particular firearms while the state age of majority was set at age 21.

The question, in a tradition and history analysis, ought to be whether such restrictions were widespread and accepted, and also whether they were enforced fairly and evenly. I’d not give too much weight, for instance, on the existence of a law that, by language, applied to everyone, but in practice was only ever enforced on disfavored minorities. I also think the nature of the restrictions needs to be at issue. How many amounted to a blanket prohibition on purchase? I think “history and tradition” analyses need to take this into account.

Alternatively, Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter. But Congress deliberately adopted a calibrated, compromise approach.

Really? It could have? And would that have created any constitutional issues? So are the young deserving of absolutely no protection under the Second Amendment? Not even to possession for training purposes under supervision of a responsible adult? Perhaps Congress could have done that, but it shouldn’t say anything about whether or not it would be constitutional for Congress to do so.

I don’t deny that from a legal standpoint, this is a complex issue. Eugene Volokh spoke of this in his quite widely read paper on this issue:

The rule that majority begins at 21 endured until the early 1970s,281 so most right-to-bear arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors. And the same issue arises as to other rights as well: Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Consider the Nebraska requirement of parental consent for marriage of under-19-year-olds. Or consider the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.

I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors—lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights—involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds warrants more research.

I also think it should not be overlooked that this is a federal restriction rather than a state one. If a state wants to lower its statutory age of majority from 21 to 18, to what extent does the federal government have the power to override that when the exercise of a constitution right is in question? Indeed, every state save Alabama (19), Nebraska (19) and Mississippi (21) have age of majorities at 18. I tend to think the federal government ought to face a substantial burden in justifying this restriction. Why can’t the states arrive at a new consensus on age of majority? What other rights could the federal government restrict contrary to that new consensus? How do you square this with Congress’s other enactments which declare anyone to be 18 years or older an adult?

This was a more rigorous analysis than most federal courts have engaged in when considering Second Amendment issues, but is still insufficient treatment for a fundamental constitutional right.

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