2010 – Page 191 – Shall Not Be Questioned

Vote, Vote, Vote

If you’re in Massachusetts, go vote today. I know, you’re hearing it from everyone.

Better yet, when you go vote, grab or make a pro-Brown sign and spend half an hour holding it up outside the polling station before you go vote. Then, if you’re excited by all of the thumbs up and honks of support, hold it up for another half hour after you vote.

Sign holding in Massachusetts is fun. Those planning to vote for the more conservative candidates tend to get the most visible support. The Democrat sign holders, even if their candidate is slated to win, usually get taken down a notch or two when they find their voters just don’t care as much. Part of that is due to the divide among left-leaning voters in the Bay State.

Michael Barone has a good look today at some polling in bellweather towns in the Bay State, and if I may, I would like to steal a line from him. He says those towns are “emblematic of blue-collar Massachusetts…despite the prominence of the stateâ€™s university communities”.

This is a great point, especially how it relates to this election battle between Brown and Coakley. Massachusetts is known as a Democratic stronghold, and most people vote Dem because for a long time, there really weren’t other viable alternatives, and ‘despite the prominence of the stateâ€™s university communities’ that doesn’t mean it is a liberal stronghold. In fact most of Massachusetts comes from ‘hearty stock’, or in other words a Catholic, blue-collar background. And while perhaps not as conservative as other places in the country, as a voting block it is certainly more mainstream than the liberal crowd pulled in and retained by the magnet of Harvard/Radcliffe/Brandeis/Tufts.

If you ever find yourself in Western Mass, go spend a day in Amherst. It’s a town that has its own foreign policy and a weekly anti-war protest that was happening years before I ever arrived and we were years away from Iraq & Afghanistan. But if you spend part of that day at a bar on the outskirts of town, you’ll see the transition first hand. Go in around 4:30 and you’ll see blue collar workers coming in to have a drink after a hard day of work. They clear out by 7 and then the college kids come in and the hip hop comes on. Talking to some of the students, you’ll find they have no clue about who was sitting in their seat an hour before, nor do they have any interest. You could argue it’s that way with all kids, but the difference is that in Massachusetts, those kids stick around as part of elite liberal crowd and they never learn to care about the guy who was sitting in their seat an hour before.

SHOT Coverage

The Shooting Hunting Outdoor Tradeshow (SHOT) Â is underway this week. If you’re looking for coverage, I’d suggest popping over to The Firearms Blog (who is there) or SayUncle, and just keep scrolling. Maybe it’s the bad economic times, but I’m just not as excited about all the new gear this year. Everything I’ve bought recently has been under 300 dollars, and used.

Skeptical

Eugene Volokh examines a suggestion for protecting expensive camera equipment: put a starter pistol in the case so it’s declared as a firearm, that way it’s less likely to be lost. The declaration tag goes in the case, so it’s not apparent from the outside that any particular case contains a firearm. That’s by design. Once it clears the TSA check, which happens in the beginning of the baggage handling process, no one else down the chain is aware whether or not a case contains a firearm. If this method works, I suspect it’s purely by coincidence.

More on the New Jersey Lawsuit

I’m finally having some time to go over ANJRPC‘s Federal Complaint in detail. The important thing is that this was filed in Federal Court. New Jersey’s court system is notoriously stacked against gun owners. The courts in the Garden State are highly political, sometimes corrupt, and will often ignore plain law. It is fair to say the independence of New Jersey’s courts leaves much to be desired. The Federal Courts are a much better venue to raise questions like this than in New Jersey courts.

We get into federal court through what’s called Federal-question jurisdiction, namely the claim that federal law preempts states for prohibiting the sale of air guns, and that New Jersey is violating said federal law with their rationing scheme. That is the real meat of the case. But because we are raising claims under a federal question, we can also raise claims under Supplemental Jurisdiction, and this lawsuit does that as well. The first concurrent claim related to the original count is raised under the due process clause of the 14th Amendment, claiming (legal format altered for space and readability):

Members of Plaintiff Association wish to qualify for one or more of the Exemptions.Â On or about January 13, 2010, Plaintiff Bach applied for three Handgun Purchase Permits.Â Plaintiff Bach wishes to apply for the Collector Exemption so he can purchase more than one handgun within a 30 day period, which purchase would satisfy the statutory criteria for the Collector Exemption.

On or about January 14, 2010, Plaintiff Bach inquired of the State Police as to what procedure is available to apply for the Exemptions. The State Police told him that there was none at this time.Â Upon information and belief, at this time there is no procedure in place by which an applicant can apply for and the Superintendent can grant any of the Exemptions.

Accordingly, certain Plaintiffs and/or Members of Plaintiffs who would qualify for one or more Exemptions, and who would therefore be entitled by law to purchase more than oneÂ handgun in a 30 day period are being unlawfully constrained by the One Gun Law, are unable to purchase more than one handgun in a 30 day period, and are unlawfully subject to prosecution if they do so.

Therefore, Plaintiffs are being deprived of their liberty and/or property without due process of law in violation of Amendment XIV of the United States Constitution.Â Plaintiffs are therefore entitled to preliminary and permanent injunctive relief, including, but not limited to, relief enjoining the enforcement of the One Gun Law.

So the law provides for an exception, and the State Police claim to have no procedure for dealing with the new law. This is typical of how New Jersey operates, and New Jersey gun owners should be greatly pleased, for once, they will have to answer for it in court. The next claim is similar, also under the 14th Amendment:

N.J.A.C. 13:54-1.4(h) provides as follows:

Applicants for a permit to purchase a handgun may apply for more than one permit per application. The number of permits requested, and each permit number shall be entered in the spaces provided on the application.

On or about January 7, 2010, Plaintiff Johnson applied for two Handgun Purchase Permits at the Washington Township (Morris County) Police Department.Â Notwithstanding the One Gun Law, Plaintiff Johnson can save time, effort, and expense by applying for multiple Handgun Purchase Permits simultaneously and lawfully using only one Handgun Purchase Permit with any given 30 day period.Â On or about January 8, 2010, the Chief of Police of Washington Township notified Plaintiff Johnson by letter that as of January 1, 2010 the New Jersey State Police are only permitting one application for a Handgun Purchase Permit per month and returned the fee for his second Handgun Purchase Permit.Â By denying Plaintiff Johnsonâ€™s right to apply for two Handgun Purchase Permits simultaneously, Defendant WashingtonÂ violated N.J.A.C. 13:54-1.4(h), which explicitly authorizes such application.

The law actually allows individuals to still apply for more than one permit to purchase at a time. The claim is that police departments are violating the law by refusing to accept applications at a rate of more than one per month. Presumably then it would be up to the purchaser and dealer to ration the gun purchases, however this complaint asks for injunctiveÂ relief against the entire law, the two concurrent claims just help make the case stronger, and will possibly put police departments under court order not to enforce any aspects of the one gun a month law.

Police departments in New Jersey having to follow the law when it comes to gun permits? What a novel concept! This suit does not raise any Second Amendment claims, which is prudent given that we do not yet have a ruling in McDonald as of yet as to how the Fourteenth Amendment applies Second Amendment rights to the states.

New Jersey Lawsuit Hitting the Media

Looks like the first of the New Jersey gun rationing lawsuit is hitting the main stream media:

New Jersey gun owners took a parting shot at the waning administration of Gov. Jon Corzine today, filing a federal lawsuit challenging his one-handgun-a-month law, claiming it is unconstitutional and that some towns already make it impossible to obtain one pistol in six months.

The article has it kind of right, though it really glosses over the fundamental issues, which I will cover later. Either way, it has Bryan Miller’s panties in a bunch:

â€œTypical gun-extremist nonsense,â€ said Bryan Miller, executive director of Ceasefire NJ, a gun-control organization. â€œThis is typical of the gun lobby — never satisfied, always seeking to have everybody armed. … I think the court will probably throw this frivolous suit out.â€

Pretty clearly Bryan didn’t read the Complaint, unless he wants to explain why this lawsuit is “frivolous.” But hey, getting Bryan upset makes this all worth it to me. I will say, it’s nice scooping the MSM on a story.

LTC Reciprocity With Maryland?

VCDL is reporting on a bill that’s being introduced in Maryland, much along the same lines as Delaware, which while still technically being a may-issue state, was able to, nonetheless, pass a reciprocity bill. This Maryland bill will recognize licenses issued by surrounding states, including Pennsylvania, but oddly not including West Virginia. I don’t know why they left out West Virginia. Maybe the sponsor has it in for them. Either way, I don’t think this bill stands much of a chance, but it’s worth supporting anyway, just to let the politicians know we still care. I just wouldn’t have unrealistic expectations about its chances. It is scheduled for a committee hearing, so if you live in Maryland, that’s one thing to consider showing up for. It’s scheduled for next Tuesday at 1:00PM.

And before anyone says I’m just being a Negative NancyÂ with my assessment of the Bill’s chances, I’d encourage folks to look at the makeup of the Maryland House Judiciary committee. You have a B- chair, which might be how we got a hearing at all. You have seven pro-gun (NRA B and higher) votes on that committee, plus the chairman, out of 22 members of the committee. It’s a very polarized committee, where everyone is either and A or B or Â D or F, which probably reflects the state as a whole on the gun issue. There are a lot of question mark candidates, but in a state like Maryland, those should be counted as likely Fs. There is one C grade on the committee, but even if you swing that one, it’s still not enough votes to get it to the floor. And even if you get it to the floor, it’s going to die there.

It is still worth contacting legislators, and showing up. It takes a long time to bring a movement to eventual success, but we should approach the fight with realistic expectations. Otherwise you risk disillusioning your followers. The real benefit going forward is to get all these question marks on record, so next election they carry grades that reflect their actual attitude toward our rights.

Energy for Brown Translates into Support in the Polls

There’s buzz and there’s buzz. Scott Brown has reached the point of buzz.

Buzz is when you start reading things on like-minded blogs that generate little new enthusiasm for a candidate or issue within a demographic that was already likely on your side. Buzz is when it’s so blindingly in your face that not even the mainstream media can hide it from the undecideds. Buzz can win elections, whereas plain buzz is far less likely to have a game-changing result.

How do you go from plain buzz to real buzz? There’s clearly no set formula that always works, but there are important real life measures that we can do with little time and effort for pro-gun candidates. Unfortunately, the fact that I said they take any time and effort means that most readers here won’t bother.

First, there is an online factor, especially in the Brown race. Because this is a special election and it is able to catch the national eye, online buzz can play a role. Ultimately, it helped turn a $500,000 money bomb day into a million-dollar-plus week of daily money bombs. Even then, blogging about it or spreading a Twitter link isn’t what generates the most excitement. Excitement translates best when it takes a bit more effort. If you don’t live in Massachusetts, but you start excitedly discussing a special election there while you sit at your dining room table in Wisconsin, your family is a little more likely to wonder why you think this event is so special.

The second point is the real life factor. This is 99.9% of what drives buzz, not the online stuff. I know a guy who could probably put up 15 astro-turf websites with cool social media share features in a day. But he can’t make 20 people meet for a couple of hours on a cold morning to wave signs for a candidate at a busy intersection. In Massachusetts, your friends are more likely to take notice when you say you can’t meet up for a pre-game beer because you plan to go hang out with a politician who is going to shake hands with the fans outside of said game. It’s that extra effort that shows people this is something worth paying attention to.

Because it’s Massachusetts, you also have the polling factor that’s helping to generate buzz. Only in an extremely partisan state will you find that people getting gleeful that their minority party candidate is only down by the low double-digits, which is how the buzz started. That generated more interest by pollsters & outside organizations. Soon more numbers released showed more interest by Republicans and Independents who tuned in once they heard about this election and that it might be competitive (again, context is that might be competitive means the Democrats might not win in a double-digit blowout). The media was involved in this step, but so were Massachusetts residents who started getting more fired up. As we’ve closed in on Election Day, the polls get closer and that turns interest and murmurs into genuine “I want to know how this turns out” buzz.

All of these factors aside, there’s one common theme. Massachusetts voters started talking about this race at home. They didn’t just run online and find other conservatives. They started talking about the fact that there was an election at home. Then, they talked about the polls on the election. Now they are talking about election events, as evidenced by the overflow crowds that filled the streets of Worcester yesterday. That is the kind of activity that’s actually likely to result in lines at the polls come tomorrow.

The thing is, if you go out and wave a signs with other supporters for a couple of hours, you’re influencing people. First, all of the people who pass want to know what on earth is possessing you to stand outside and wave signs. Curiosity, it’s useful for something other than killing cats. Second, when you mention that you did that in conversation with friends, they want to know why you care enough about the candidate or issue to go stand outside.

I realize that we harp on these actual activist activities a lot, but that’s because they do work. Each little stone leaves a ripple in the lake. When the right campaign is doing its job, that enthusiasm can add up to create a landslide that turns into a tsunami. Is it hokey to go rally outside? Yes. So take your wife or husband and then go on a lunch date when you’re done. Is is awkward to call strangers at home and ask for them to support a candidate? For most of this readership, I would say very much so. But take your kid with you and then head out for ice cream afterwards. Is it a bit of work to walk a precinct reminding voters when election day is? Yes, but since your New Year’s resolution is to lose weight, pick up two precincts just to lose another notch on the belt.

Change your perspective and view these activities as part of your civic duty. Make it an errand that just needs to be done in the course of your everyday life. And just like you might tell a story about this nutcase cat lady at the grocery store, your stories might become about the guy who answered the door in only tightey whiteys (actually happened on a canned food drive walk, not a political walk) or the woman who answered the door in the ’80s rock band t-shirt and nothing else (she was a Democrat who moved here from New York). That creates buzz.

Failing Grade

Via Dave Hardy, we have this fun article from The Hill:

President Barack Obama received a failing grade this year from The Brady Campaign to Prevent Gun Violence on Monday .

The Brady Campaign blasted the president, whom the group endorsed in 2008, for not having taken significant steps to advance gun control laws.

“It’s been a very disappointing year for us, especially considering what he campaigned on,” the group’s president, Paul Helmke, said during an appearance on MSNBC. “This year they ran away from the issue, and actually signed two repeals of good gun legislation.”

I’ll be honest, I think they are being a bit hard on Barry. It’s not like we weren’t careful to ensure these provisions were attached to must-pass legislation he really couldn’t have vetoed. It’s also not like Congress is in the mood to take up gun control, even if Barry wanted to. If the Bradys want someone to be mad at it ought to be Rahm, who is the one who orchestrated the Democrats’ return to power using moderate Democrats who were more sensitive to the sensibilities and temperament of their local districts. They are the reason the President is painted into a corner on this issue.

But I can also see why they are disappointed. They probably thought they were backing another Clinton. Even better, a candidate who hated guns even more than Clinton. But when Bill wasn’t busy playing “hide the cigar” with his female interns, he was busy fighting culture wars. Obama doesn’t seem to have any interest in culture war issues, probably because he’s way too focused on making the entire economy a ward of the state. Culture wars are for later, you see. Clinton was just ahead of his time.

Shooting in Old City, Philadelphia

Looking at the video Fox provided, and based on the circumstances, it looks like it was multiple attackers. Lawful self-defense tends to be a very circumstantial thing, but based on what we see and have described here, this looks like self-defense to me. This guy needs to get a good lawyer, pronto.

I would also point out this is another reason to carry pepper spray. You want to have something between running and deadly force, and a defensive spray will put down your average drunk assholes who aren’t seriously committed to hurting you. Multiple attackers complicate things, and that’s the kind of situation it can be smart just to go straight to deadly force. But if you shoot someone who is unarmed, you’re going to end up having to answer in court, and that’s life-ruining expensive, as this guy is going to find out.

But based on the video, if I were on that jury, I’d acquit, unless there’s some other piece of evidence that demonstrates this wasn’t self-defense. Hopefully justice will prevail here.

UPDATE: On his docket sheet, looks like he’s being charged with carrying without a license, and carrying firearms on the streets of Philadelphia, even though he has a Virginia license which is valid in Pennsylvania. This is par for the course with Philadelphia. They will tend to pretend you don’t have a license until you prove it. His lawyer will get that charge thrown out, in all likelihood. Their hope will be that he pleads to one of the lesser charges, so he may learn his lesson that no one is permitted to defend themselves in the City of Philadelphia.

ANJRPC Challenges NJ Gun Rationing in Federal Court

I have to admit, I give the Association of New Jersey Rifle and Pistol Clubs, Scott Bach, and Evan Nappen, a lot of credit for thinking this one up. Their Counsel, Daniel Schmutter, deserves credit as well for putting together such a solid case. It’s a novel legal argument, based on an obscure aspect of federal law, and it’s so deliciously clever it’s hard to believe it will work, but I think it has a good chance. This challenge to the one-gun-a-month law hinges on the definition of “firearm” in New Jersey Law. You can see the ANJRPC press release here on their web site:

The lawsuit is based on a federal statute that pre-empts state and local laws regulating the sale of certain firearms. The new law runs directly afoul of that statute because of the way New Jerseyâ€™s ultra-strict laws sweepingly define firearms. The suit also asserts claims based on the failure of the State Police to implement procedures under the new law, as well as the unlawful rationing of handgun permits by individual municipalities.

They also have a link to the Federal Complaint which you can find here. The legal basis for this federal complaint isÂ 15 U.S.C. Â§5001(g)(ii), which provides for federal preemption of laws regulating air guns, if you can believe that. Quoting:

(g) Preemption of State or local laws or ordinances; exceptions

The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that noÂ State shall– . . .

(ii) prohibit the sale (other than prohibition the sale to minors) of traditional B-B, paint ball, or pellet firing air guns that expel a projectile through the force of air pressure.

The reason this matter is because New Jersey’s definition of a firearm includes air guns as well. From N.J.S 2C:39-1 (f), where the term firearm is defined:

It shall also include,Â without limitation, any firearm which is inÂ the nature of an air gun, spring gun orÂ pistol or other weapon of a similar natureÂ in which the propelling force is a spring,Â elastic band, carbon dioxide, compressed orÂ other gas or vapor, air or compressed air,Â or is ignited by compressed air, andÂ ejecting a bullet or missile smaller thanÂ three-eighths of an inch in diameter, withÂ sufficient force to injure a person.

Essentially the argument is, if someone buys an air gun, they are by statute then prohibited from purchasing another during that thirty day period, so it amounts, in practice to a prohibition of the sale of air guns. Now, the important thing here is the lawsuit is over one-gun-a-month. It is not over the definition of firearm under New Jersey law. Therefore we escape the problem of severability, where a judge could rule the air gun language in the definition is superseded by federal law, and thus moot, severing it from the definition, and leaving the rest stand. Because of the subject matter of the lawsuit, the judge may not consider the definition, and will be forced to consider only whether the one-gun-a-month law violates the federal preemption, which is pretty clearly does.

This would mean the legislature would have no choice but to try to pass one-gun-a-month again, though with an exception for air guns this time to get around federal law. Given that Dick Cody is out as President of the Senate, and Stephen Sweeney, who is friendly on the issue, is in, it doesn’t look good for re-passage. Even if it does, Corzine is out, and Chris Christie, who was not supportive of the rationing law, will now occupy the Governor’s mansion. So it doesn’t look good for the other side if this lawsuit prevails.

There are implications for Pennsylvania too, if this case wins, since Pennsylvania is also n the Third Circuit. Philadelphia currently bans sale and possession of air guns in violation of the same federal statute, so getting some favorable precedent in the Third Circuit on this issue will also help air gun shooters in Philadelphia, should anyone subsequently bring suit against the ordinance.

All in all, I think this is a brilliant lawsuit, and ANJRPC, and all those involved with bringing it, deserve a lot of credit for coming up with a novel legal argument against gun rationing that has a serious chance of winning. Ironically, it was New Jersey’s inclusion of air guns in with firearms that may be this law’s undoing. Let’s hope for a favorable outcome in this case.