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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.

You Have to Take the “Special” out of SWAT

Bob Owens covers the NBC News story showing that Boston cops were over gunned and undertrained in the aftermath of the Boston Bombing. I think it’s very psychologically bad to make police feel separate from the civilian population they are actually a part of. The S in SWAT stands for “Special,” and I tend to think when you hand young men “special” weapons, without the rigor of military discipline to control those young men, you’re bound to get a lot of little napoleons and wannabes. When that same young man hears, “yeah, I have five of those” from his “civvie” shooting buddies upon presenting his shiny department issued AR, that perpetuates a culture where you’re nothing special, and where you might actually have a culture from which you can learn, and be more willing to learn. Massachusetts is a state that has endeavored to destroy that culture, and elevate its police to something very different from its civilian population.

PA Superior Court: No Right to Carry

The case is Commonweath v. Scarborough. This case largely revolves around the legality of the stop, but there are issues at play that should concern any Pennsylvania gun owner.

First is whether or not there’s an equal protection issue with state law singling out Philadelphia. Pennsylvania is an open-carry state, in that you can carry a firearm openly in this commonwealth without a license, the sole exception being “cities of the first class” (i.e. Philadelphia). In Philadelphia, you may only carry a firearm (openly or concealed) if you have a License to Carry Firearms. The court rejected the equal protection issue, which would be the expected result. But they went farther, which is very concerning:

The class created by Section 6108, “persons located in Philadelphia,” is not based on race, national origin, sex, or illegitimacy. The right at issue under Section 6106, “the right to carry a concealed weapon,” and the right at issue under Section 6108, “the right to carry a firearm on the streets of Philadelphia without a license,” are not fundamental rights. They manifestly do not rise to the protection afforded by the Second Amendment’s general guarantee of the right to keep and bear arms.

They could have, actually, cited existing Third Circuit precent that there is no right to bear arms outside the home. That was decided in the case of Drake v. Filko, which challenged New Jersey’s restrictive permitting scheme. That is now on appeal to the US Supreme Court. So federally, there is no right to carry a firearm in Pennsylvania outside the home, because of a grave error made by the Third Circuit Court of Appeals. As Alan Gura mentioned in his law review article:

The Third Circuit supplied a great example of how far off the rails a “step one” analysis may veer when history is given short shrift.  Upholding New Jersey’s requirement that handgun carry applicants demonstrate “justifiable need” to exercise their Second Amendment rights, a panel majority held that carrying a handgun for self-defense “fall[s] outside the scope of the Second Amendment’s guarantee.” Even though Heller had expressly held that to “bear arms,” as used in the Second Amendment, is to “carry” arms for the purpose of self-defense in case of confrontation, the Third Circuit rejected an appeal to “text, history, tradition, and precedent,” stating that “we are not inclined to address this contention [that the Second Amendment guarantees a right to publicly carry arms for defense] by engaging in a round of full-blown historical analysis.”

And now we have PA Superior Court giving the right to bear arms the same short shrift. Our Supreme Court has generally been more amenable to the right to keep and bear arms, but only barely so. It may be the case that the state may require a license; our side has generally conceded that when confronting restrictive licensing regimes in court, but that’s quite different than suggesting there’s no right at all, or that such a right is not “fundamental,” when that was the holding of our federal Supreme Court.

Cooler Heads Prevail in Bundy Ranch Situation

BlmOver the weekend, while I was busy with yard work, the Bureau of Land Management backed down from their confrontation with Cliven Bundy in Nevada. It’s actually been the foreign media that seem to be most fascinated by all this, as the coverage at the UK outlets Daily Mail and The Guardian, and Australian outlet the Sydney Telegraph, aptly demonstrate. A pretty good article about the confrontation appears in Breitbart, which is not entirely sympathetic to Bundy’s position, but provides a good bit of background.

This whole incident is baffling for an east coaster, because grazing rights on federal land seem more like a policy dispute rather than an dispute of fundamental rights, or the government reaching beyond its Constitutional constraints. Few people would argue the federal government doesn’t have the power to control it’s own property. It’s in the Constitution. This has never seemed to me to be in the realm of things we draw lines in the sand and threaten to shoot people over.

I get the fundamental unfairness of it all; that the feds are ruining the livelihood of ranchers over a desert tortoise, when Harry Reid and his former staffer who now heads up BLM is busy defiling that very tortoise habitat with a solar farm to benefit one of his big donors. I get that the federal government is currently flush with overreaching bureaucrats who have little regard for the people their policies impact. But to me this looks like something we’re better off changing at the ballot box. I also don’t really have very much sympathy with the Sovereign Citizen Movement, which Bundy seems to have leanings toward.

I won’t pretend to have a strong understanding of the west’s land use culture. To east coasters, westerners have always seemed rather eager to kill each other over things that people on the east coast take for granted, like water. But that’s not to say I’m on the federal government’s side in this whole affair. While I believe the federal government is probably in the legal right, I think they’ve squandered their moral right when they decided to threaten protesters and corral them into first amendment pens like herds of cattle. When I say what’s happening with Cliven Bundy isn’t worth shooting people over, I’m speaking to both sides. The BLM didn’t have to come in with a cocky attitude and pushing people around. I’d rather live in a country where’s a healthy spirit to resist bureaucratic whim, than live in one where people are expected to be obedient little subjects and step aside. Bundy stood up to the federal government and he won, and there’s part of me that celebrates that no matter how I feel about the actual policy issue. The famous quote from Thomas Jefferson is quite apt here:

God forbid we should ever be 20 years without such a rebellion. The people can not be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13 states independent 11 years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country ever existed a century and a half without a rebellion? And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.

In a political climate where a large portion of Americans didn’t feel like they were constantly under the boot of the federal government in general, and this Administration in particular, these kinds of public policy disputes wouldn’t risk starting a civil war. The federal government backed down because it did not want a bloodbath. I think that was the prudent and moral thing to do. If the federal government is going to deal with grazing on federal lands, it’s going to have to earn back a its legitimacy from the large segment of the public that now questions it. This Administration has taken to politicizing every aspect of American life, and these are the wages of that policy.

The BLM Debates & Taking a Stand

I’ve only been vaguely following the issues with the Bureau of Land Management out in Nevada, and neither Sebastian nor I will pretend to be experts in either the land use policies or the land use culture of the West which is very different when you consider that the federal government owns about 86% of Nevada, with about 2/3 of the state falling under the control of the BLM.

There are some folks saying that the rancher is completely in the right and not at all behind on payments for grazing access, and others in the media that claim he admits to about $300k in debt over the issues. To make it worse, a local government official apparently had a message for outside protesters: “if they come to Clark County to support Bundy they ‘better have funeral plans.’”

From what I understand, even though local folks are encouraging people to come in, they don’t want it to be about guns and camo-clad masses. Unfortunately, not everyone may listen to them and things could easily end up escalated, as illustrated by the Clark County’s Commissioner’s remarks. Anyone who ventures out there needs to make sure that they do fully understand every legal issue at hand and determine if they truly classify this as a government overreach that is serious enough to warrant possible jail time (multiple people have already been arrested) or worse if the Clark County Commissioner has his way.

I’m rather surprised at the backlash over something like grazing on land that is established as belonging to the federal government when there’s a case in Texas brewing of the BLM preparing to take over the management of 90,000 acres that landowners have deeds on and have paid taxes on for years. This a report from the Texas Farm Bureau on the issue:

Interestingly, BLM inserted itself in the Texas-Oklahoma border dispute after an Oklahoman sort of “invaded” Texas to set up a dredging operation and declared the land his after careful study of the laws and history of the Red River. That man is fondly known by my family as “Uncle Buck.” Because of that opened door, the BLM now wants more land under their control, and I haven’t found any mention of any offers to compensate current owners for it fairly – either by the federal government or Texas agencies that screwed up in including it in deeds and charging taxes on it. I would think that taking privately owned land without compensation would be a much bigger issue to drive protest than one’s desire to graze cattle on established taxpayer-owned land.

I’m not sure I really have a conclusion to this post. It’s just something that Sebastian and I have been observing and talking about the last few days. It’s been interesting to see what kind of policy debates are getting people worked up about federal overreach, but others that are falling by the wayside when they seem to be more direct constitutionally-related issues. Personally, we both hope that people keep their cool in Nevada, contrary to whatever extreme rhetoric is coming from Clark County officials.

“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.

The Mass Stabbing We Feared

While some gun control proponents say that you don’t see mass stabbings, only mass shootings, a Western Pennsylvania high school just proved them very wrong this morning. I’ve waited for a little more to unfold in the story before commenting because it’s not an issue of guns or no guns, knife control, or even metal detectors at every door, as it seems that some people are already pushing while students are still undergoing major surgeries since they are in critical condition.

A local paper featured a comment by a senior that I thought was very telling on how the issue of violence as a whole is very complicated and not easily solved by one policy that focuses on the instrument used:

“Everybody was just freaking out,” he said. “It’s been a tough senior year. We’ve had a lot of fights in school — more than usual — and a suicide this year.”

Mental health issues going unaddressed in the community? Check. Increased violent outbreaks as a whole? Check. Those won’t be fixed with gun control, knife control, or metal detectors. It sounds like there won’t be many easy answers for this community. Certainly, they are in our thoughts as this story continues to be investigated.

Latest on EP Armory 80% Lower Receiver

ATF has ruled that it is a firearm, despite the inclusion of a biscuit in the fire control well, which the rest of the receiver is injection molded around. You can find the determination letter here.

Unlike “castings” or “blanks” which are formed as a single piece so that a fire-control cavity has not been made, EP Arms uses the biscuit specifically to create that fire-control cavity during the injection molding process. As described in your letter, it appears that the sole purpose of the “biscuit” is to differential the fire-control area from the rest of the receiver and thus facilitate the process of making the receiver into a functional firearm. ATF has long held that “indexing” of the fire-control area is sufficient to require classification as a firearm receiver. Based upon the EP Arms manufacturing process, it is clear that the “biscuit” serves to index the entire fire-control cavity from the rest of the firearm so that it may be easily identified and removed to create a functional firearm.

EPArmoryLower

Keep in mind that courts are generally highly deferential to agency determinations, so I wouldn’t give this much of a chance in court. But it’s noteworthy that ATF has “long held” that indexing constitutes creating a receiver. Where in the Federal Register can that be found? Can’t find anything in the code of federal regulations either. It’s probably found in other determination letters. This isn’t rule of law, it’s rule by bureaucratic whim.

“I just don’t see how people can grab a shotgun and rack it and stand on their front porch…”

Those words came from a New Jersey Police Chief who was appalled that, as his officers acted in a way that made a family believe their house was being broken into during a search of the surrounding property, a man grabbed his shotgun and went to check things out to make sure he and his parents weren’t in danger. Even though he never shot anyone, and he appears to have handled the situation reasonably when he believed the safety of his family was in danger, the police arrested him and wanted to put him away for 10 years.

Fortunately, a New Jersey jury acquitted him of the charges.

When someone linked this on Facebook, another person noted that this man was following the first few steps of our Vice President’s advice. He said you should grab your shotgun, load it, and go up to the door. The difference is that this man knew better to actually identify a threat rather than just shooting randomly, as the Vice President encourages people to do.

Pennsylvania’s Candidates Speak Out on Gun Control

Based on their 100% scores from Ceasefire PA, it appears that Allyson Schwartz and Katie McGinty haven’t met a gun control proposal they didn’t like. The “lowest” scoring Democrat on the ballot Tom Wolf who agreed with the gun control group almost 80% of the time. This marks a stark change from 2010 when the “lowest” scoring Democrat was against about half of the group’s policies.

I downloaded the report and will do a more thorough post on the exact issues the gubernatorial candidates want to see become the law of the land in Pennsylvania shortly. One of the delays in getting up a post about the top of the ticket statewide races has been watching the fallout after petitions went in. There have already been changes to the primary ballot with people dropping out, so I wanted to see what the playing field really looked like. Based on the quick look of the summary, pro-gun Democrats in the central part of the state need to start raising their voices – loudly – and start voting their gun rights if they don’t want to line up to turn them in, a serious policy proposal from a suburban Democrat in this state. This isn’t a “Philly” issue anymore. The anti-gun extremism is clearly spreading in Pennsylvania.

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