March 2014 – Page 5 – Shall Not Be Questioned

Wednesday News Links

Struggling to find much to say about any of the tabs that have built up over the past few days, so that means it’s just time to do a link dump.

There are pro-gun bills up in both Tennessee and Georgia. Also, in Florida, the threat of force bill is getting a floor vote. This is the bill that was mistakenly called the “warning shot” bill. Floridians also continue to approve of the Stand Your Ground law. Remember, Newtown totally changed the national conversation about guns.

The fight is back in Rhode Island, as they are talking about banning scary looking guns again.

Prince Law takes a look at the sanctions against Russia, and notes that the consequences are still up in the air. Also, the Hill is reporting on this as well. I think this is more “something to keep and eye on” rather than “you may now panic.”

Drake v. Jerijian is a case to watch, which challenges New Jersey’s de facto no-issue.

The City of Durango, CO is blackmailing a 100% NRA club to drop the requirement or lose its lease with the city. I think there might be some First Amendment issues going on there if the city can’t articulate a neutral reason why the club can’t require NRA membership. Bitter has written about this club previously.

Bob Owens has more on 80% lowers.

A 911 dispatchers view on weapons and self-defense.

Questioning whether Open Carry is the right tactic in every situation is beginning to feel like questioning whether Ron Paul was really the right candidate to carry libertarian ideas forward. For some the answer is always OC, or Ron Paul. For new readers, the official position of this blog on OC is best summed up in this post.

Russian troops using AR-10 rifles? They are not Spetsnaz, comrades. They are just armed enthusiasts for ethnic Russian speaking peoples!

Off topic:

Tam: Top. Men.Â “You don’t put the junior varsity in against the Strategic Rocket Forces.” I think the worst part of all this is when Putin is mocking Obama, I snicker and have to concede the point. Putin has Obama’s number. He knows what kind of chump he’s dealing with in the White House.

An article on food and energy inflation, courtesy of Instapundit. I can definitely attest that food and energy is a much much larger component of my budget than it was five years ago.

Mixed Messages from Obama Administration on Background Checks

In the context of screening to determine eligibility to exercise a fundamental right, background checks are vital, and we don’t concern ourselves with whether it might be a racist policy that disproportionately prevents minorities from exercising their right to keep and bear arms. But in the context of employment, the Obama Administration is very concerned about background checks preventing minorities from being hired:

The Obama administration continues to warn employers about doing criminal and other background checks that could disparately impact minorities and other groups protected by discrimination laws.

Oh, so now that it’s in a context the left disfavors, background checks are bad. I see.

Civil right advocates also worry about employers ruling out minority candidates because of arrest records and not necessarily convictions.

And how many Blacks in Philadelphia have been denied their right to bear arms under the Second Amendment and Section 21 of the Pennsylvania Constitution because of just an arrest record? We’ve been bitching about this stuff for years, but because it’s a concern the left does not view as legitimate, nothing changes. If you want to be a “civil rights advocate,” you should care about all civil rights, not just the ones you like.

I can actually agree that employers are getting a little nuts when they are counting arrest records against applicants, but you don’t then get to turn around and dismiss concerns when they are presented in a context you don’t favor.

Has Anyone Noticed Google Alerts Ceasing to Work?

One thing that makes it hard to find stories is Google Alerts either seem to not work entirely, or are very incomplete. I’m really hoping that Google isn’t planning to put Alerts out to pasture with Google Reader. Alerts are a core function of their search engine, which is kind of their core business. I can see Google putting Reader out to pasture, but Alerts? I hope not. But over the past several months, my alerts miss the vast majority of stuff out there.

Civil Rights Victory in Delaware

In response to a question from the Third Circuit Court of Appeals, The Delaware Supreme Court has ruled in Doe v. Wilmington Housing Authority that Section 20 of the Delaware Constitution, passed in 1987, is more extensive than 3rd Circuit precedent recognizes for the 2nd Amendment, which does not extend outside the home. Delaware’s Section 20 explicitly recognizes a right to carry outside the home for self-defense.

At issue is Wilmington Housing Authority’s revised regulations on guns, which prohibits carrying firearms in common areas. The Delaware Supreme Court argues they violate Section 20 of the Delaware Constitution. The Court uses intermediate scrutiny here, but they do a much more honest analysis at that level than most courts, which have really just instituted rational basis review under the guise of intermediate scrutiny. Here’s the Court:

To satisfy its burden, WHA argues that it has an important governmental interest in protecting the health, welfare, and safety of all WHA residents, staff, and guests who enter onto WHA property. WHA argues that an accidental discharge of a firearm may have serious fatal consequences and that dangers inhere in the increased presence of firearms. But these same concerns would also apply to the area within any apartmentâ€”interior locations where the WHA concedes it cannot restrict the possession of firearms for self-defense. The Revised Policy does more than proscribe the unsafe use of a firearm. It also prohibits possession in the public housing common areas except where the firearm is being transported to or from an apartment. In this context, WHA must show more than a general safety concern and it has not done so.

In Griffin v. State we explained that an individualâ€™s interest in the right to keep and bear arms is strongest when â€œthe weapon is in oneâ€™s home or business and is being used for security.â€61 Residents have a possessory interest in both their apartments and the common areas. And although Residents cannot exclude other residents or the public from the common areas, their need for security in those areas is just as high for purposes of Section 20 as it would be inside their apartment or business. The common areas are effectively part of the residences. The laundry rooms and TV rooms are similar to those typically found in private residences; and the Residents, their families, and their guests will occupy them as part of their living space.

The Court court had before it two questions: was the ban on firearms in common areas of public housing constitutional under the Delaware Constitution. They answered that no, it was unconstitutional. The second question is whether they could require copies of permits and licensing other documentation in support of enforcing their regulation, and the Delaware Supreme Court answered that that provision was overbroad, and was likewise unconstitutional under Section 20:

The Reasonable Cause Provision was enacted, together with the Common Area Provision, by the WHA in response to McDonald. Because the unconstitutional Common Area Provision is not severable as a matter of Delaware law, the Reasonable Cause Provision which enforces it is unconstitutional and overbroad as well. For that reason, we answer the second certified question in the negative.

If only ever court did intermediate scrutiny analysis like the Delaware Supreme Court just did it, we might be in much better shape. Congratulations Delaware, you have a Supreme Court that takes your rights seriously.

Celebration & Nervousness

Reader Adam Z. sent along the news that one of Pennsylvania’s open Congressional races where the current A rated congressman is retiring got a little more interesting with the announcement that the perceived more moderate candidate with no record has dropped out of the race. He didn’t want to fight it out in a Democratic primary against his farther left opponent who is running for the same seat for a third time after already losing twice.

This is one of those cases where it’s great news that the race seems more promising for the candidate who will likely (though far from assured) have the better Second Amendment positions in a tight district. On the other hand, the fact that a more radical candidate is now the only opposition makes it a bigger nail-biter.

Needless to say, it will be interesting to see polling when this race gets closer to election day.

Analogy Fail

I know many people think I should ignore the Brady Board member from Minnesota, but as a leader in their movement, I think it’s worth pointing out how they think. Earlier this week she managed to put together a coherent argument, even though the analogy fails on every level:

The truth is that only some gun sales require background checks and others not. They are all selling the same products. Guns are all potentially dangerous. They should all be treated the same as say cigarettes where store clerks ask for IDs for anyone who looks too young to legally buy them. In addition, cigarettes are now behind counters where someone has to ask for them. Why? Because we have decided that they are bad for your health and not good especially for kids and teens. Alcohol sales are regulated as well. IDs are required for purchases if the buyer looks too young to be legal. Why? Alcohol can be bad for people as well. But all alcohol sales are treated the same. All cigarette sales are treated the same.

All gun sales are treated the same by this analogy. At retail, I have to present ID, fill out federal and state forms, and submit to a background check to determine my eligibility to make the purchase. That’s the same everywhere a gun is purchased at retail. Similarly, I may have to flash ID to buy cigs or liquor if there’s a question about my eligibility (being 21 or older, which is pretty obvious). Now, in most states, it’s illegal for me to transfer liquor or cigarettes to someone who isn’t eligible (under 21 or 18). But there’s nothing to prevent me from transferring or selling either to someone over those ages, and the only thing preventing me from doing so is the law itself.

We do not make it a felony for me to take a bottle of wine to a friends house for him to try out. When I bring a friend over, I can let him have a bottle of beer. I can even pay a friend who helps come over for some home improvement with a case of beer. For smokers, it’s not illegal to bum a cigarette off someone. If I decided to quit drinking, I could still sell my wine collection to someone in most states. Now, you can’t sell your homemade wine, but you also can’t sell your homemade gun. You can’t make moonshine legally without a license, but nor can you make a machine gun without the same. You can’t be in the business of selling alcohol in most states without a license, but you can’t be in the business of selling guns without a license either. So aren’t alcohol, tobacco, and firearms already regulated quite similarly? Actually, firearms are regulated more severely. I don’t have to fill out forms to buy booze or cigarettes, and I don’t get carded much these days.

What Joan proposes is that the only people who can transfer a firearm are federally licensed dealers. If we treated tobacco and cigarettes the same way, you wouldn’t be able to transfer any alcoholic product to another except through a liquor store, where the store would charge you a significant price of a bottle of wine. Only the liquor store could legally determine eligibility. Someone bumming smokes off you would have to go to a licensed cigarette outlet, and they’d have to authorize the transfer of the cigarette, which of course they’d charge for since you’re ~~wasting~~Â using up their valuable time.

I point this out not because I expect to change Joan’s mind on this, but to show how shoddy their thinking is on these things. They act like it’s just common sense, when we treat no other consumer product, even dangerous consumer products, that are restricted from certain persons, the same way Joan proposes we treat firearms. It could be argued that you can’t see a criminal record as apparent as someone age, and they might have a point. But that doesn’t necessarily translate into prohibiting all transfers that don’t go through a retail dealer.

Surge in Carry Permits

The Washington Times is reporting California Sheriffs are getting deluges with applications for concealed carry permits since the ruling in Peruta. Right now Peruta is stayed, though both San Diego and Orange County have decided to start issuing on a shall-issue basis anyway. Sheriffs in other counties can still take very narrow reading on “good cause,” at least until the court issues a final mandate. Still, it’s good to see there’s pent up demand in the Golden State. It is through this that perhaps a foundation can be built that would start turning the state’s gun laws around.

More Irish Democracy in New York

Bob Owens has a nice snap of a group of New Yorkers burning their registration forms. Rates of compliance for registration schemes have historically been very low. I seem to recall reading that even California’s Roberti-Ross ban in the late 80s had a compliance rate only a fraction of the estimated number of “assault weapons” in civilian inventory. It’s worth noting that post-Newtown, a proposal to confiscate all the registered firearms was floated in California, and it’s happened in New York and is about to happen in CT for those who foolishly filed late.

I also wonder how many of the registered firearms were considered “throw down guns”, kind of like a “throw down wallet” you’d use on a mugger. In other words, you register one, leave the unregistered ones as safe queens, bury them, or do whatever, and if they ever come for the registered one, you can sacrifice it because they don’t know about the 10 other rifles. Meanwhile you can shoot the registered one without worry you’ll get picked up by the authorities and charged. It wouldn’t be my plan, but I could see a lot of people who are “complying” are only making a show of it.

Administrative Procedures are Important

ATF has a habit of ruling by letter, instead of the method Congress prescribes through the Administrative Procedures Act. Dave Hardy notes that in the case of 80% lowers, which are all over the gun news because of the raid on Ares Armor. It would be possible to do rule making on what a receiver is and is not, and have it be clear in the Code of Federal Regulations.

I don’t know how much you all know about these EP Armor polymer lowers, but it looks to me like they mill out the space for the trigger group, and then backfill it with a different color polymer so the customer knows exactly how much to machine. ATF argues that the milling process constitutes manufacturing a firearm, with all that it entails, regardless of whether you backfill it later. They have an argument to be made there.

But it’s quite disturbing that ATF was fishing for Ares customer list. What crime have the customers committed? Violating a determination letter? I know the courts have a habit of deferring to agency determinations, but how long is ATF going to be permitted to get away with ruling by letterhead instead of federal regulations like agencies are bound to?

I’d say good advice is, if you buy an 80% lower, cash and carry is the watch order of the day.

NRA Board Elections

With about 3 weeks for ballots to be returned, we’re doing a bit of a late overview of who we’re voting for this year. Neither one of us is voting for more than 10 people. There’s no need to feel like you need to fill in 25 circles just because you can. Here are a few of the names who might otherwise be overlooked.

First up our ballots (which happen to be exactly the same, which isn’t normally the case – maybe because we’re both digital subscribers?) is William H Dailey. He’s chair of the Civil Rights Defense Fund which often funds cases that have the opportunity to set precedent. Even if the bigger court cases on carry are generating mixed results, the CRDF is often involved with cases that rarely make major headlines.

We also backed Dan Boren because he does show up to participate, and politically I think keeping moderate Democrats involved in the issue. Representing the Left Coast, we’re voting for Joel Friedman who we’ve mentioned before.

Coming back east, we also both voted for Patricia A Clark from Newtown, Connecticut. She’s very involved in the shooting sports side of the issue, and I think that’s particularly important in places like Connecticut right now. In the same column on our ballots, there’s Todd J Rathner from Arizona who is actively involved in state legislatures pushing bills for both gun and knife rights. At the very bottom of the column is Linda L Walker who has been very good at being accessible to many gun owners on the ground.

Finally, we both voted for Antonio Hernandez of Puerto Rico who currently serves as a non-board member on the Legal Affairs and Urban Affairs Committees and has pushed to promote a pro-gun culture there by establishing the first Friends dinner and getting the island’s state association authorization renewed. In addition, I also cast a vote for Allan D Cors for his work with the NRA Foundation, as well as his involvement with ILA. I’m a fan of board members who have been involved in multiple aspects of the organization.

As always, we’ll highlight the results of the votes at the Annual Meeting.