July 2014 – Page 3 – Shall Not Be Questioned

Philadelphia Legal Smackdown

Remember two years ago when it came out that Philadelphia disclosed personal information about some license to carry applicants in violation of state law?

They were people who were initially denied licenses and were in the process of appealing the denial, and many of them seemed like highly questionable denials.

Well, several of those folks did call lawyers who worked to sue the city and ended up with a great settlement.

From Josh Prince, one of the four attorneys on the case:

…the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement… Further, and of similar importance, the City has agreed to a number of policy changes…:

Not to disclose LTCF applicant information either electronically or in-person;

Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;

Customer service training for the Philadelphia Gun Permit Unit;

Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;

The City will not required references on the LTCF application and will not contact any references listed on the LTCF application;

The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;

The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;

The City will not deny an application because the applicant answered â€œnoâ€ to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;

The City will process all LTCF applications within 45 calendar days;

The City will remit $15.00 to any applicant who is denied within 20 days;

The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and

The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

All of the attorneys in this case deserve huge kudos: Benjamin R. Picker, Jonathan Goldstein, Jon Mirowitz, and obviously, Josh Prince.

It’s No Laughing Matter

Joe Huffman had a worn AR-15 part that was causing his rifle to double. He notes:

It would have been really ugly if the ATF took a dislike to me. A gun malfunctioning like that can result in a prison sentence. Itâ€™s not right. The law should be fixed. The ATF should abolished or at least have itâ€™s â€œclaws trimmedâ€. But that is the way it is.

To some degree the Supreme Court already declawed ATF’s interpretation of this statute in the case of Staples v. United States, but if you ever have this happen to you, it’s very very important that you fix it promptly. Definitely don’t take it to the range and tell your buddies, “Hey, check this out!” From Staples:

We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible tenyear term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.”

Joe has little to worry about here, since he pretty clearly fits nicely into the Staples language. But to be safe, it’s probably also a good idea to destroy or otherwise get rid of the worn part once you’ve replaced it, because you don’t want to constructively possess a machinegun either. The statute in question hinges upon your knowledge, and whether you have a “guilty mind,” as is required under the Staples decision. If you have an AR go full-auto, or burst, that in itself is not strictly a crime if you take measures to quickly fix it. If you think it’s cool and knowingly keep it that way, and that goes doubly if you tell someone about it, you’re opening yourself up for possible prosecution.

Making Guns Pretty

I don’t shy away from the fact that most of my gun purchases have started out with the phrase, “It’s so pretty!” There aren’t common features or qualities about these guns that make them attractive to me, but they always manage to jump out at me. Lately, whether it’s at a gun show or a bigger event like the NRA convention, no new guns have made me want to grab one and take it home lately. But something landed in my inbox this morning that changed my tune.

I got a press release from Cryptic Coatings, and I accidentally hit open instead of the trash like I do with most releases that just don’t interest me with their titles. When it opened, I did a double take because something made me, “It’s so pretty!” for the first time in ages. What is it? Their “mystic bronze” coating.

I adore the color brown, and especially anything that has a little shine and qualifies more as bronze. I love rose gold, too. This is like mixing everything I love in being girly with guns. Pink has never done it for me, but this, this definitely does. I don’t know anything about the quality of product or service here, but man, I do love the shiny bronze color.

Monday News Dump – 7/21/2014

Just when I thought I couldn’t get any busier, it looks like I’m going to take on another client. The good news is, it won’t be a very long engagement, but it will be 12 hours a week for a few weeks, on top of the 20 hours a week I’m billing at another client. It doesn’t start for a few weeks, but my time is going to get more scarce during that time, so Bitter will be filling in again. But for now, here’s some collected news articles that might be of interest:

Brian Anse Patrick has a new book out that explores the Zombie phenomena.

The Pueblo Chieftan didn’t particularly appreciate Bloomberg’s comments. The more people that gets around to the better.

A brief filed as an amicus in an ACLU case against government data harvesting.

Apparently the Connecticut Bar Association is looking to get in bed with the Brady’s. Apparently membership in the state bar is not mandatory for attorneys there. If you practice law in the Nutmeg State, I’d call and complain.

Is Remington trying to de-emphasize the R51?

The House is looking to preempt Washington D.C. from passing its own gun laws. This would be the first step on what I think should be a long road of the feds using their power under the 14th Amendment to preempt state gun laws. Our opponents want to argue that there needs to be a single, federal standard? Well, OK then, we’ll give you one.

Detroit police chief: ‘No question in my mindâ€™ legal gun ownership deters crime’

Electronic Letters of Marque and Reprisal? An idea who’s time has come, if you ask me!

Another case of “Careful when you leave America.”

The feds are very eager to get rid of surplus M16s. So eagerÂ they’re giving two for one deals even if the department doesn’t ask. You know a good way to take care of this problem? Allow them to be surplussed through the DCM. Hell, I’d even take an exception that still required the auto-sear to be removed. Not possible under current ATF “once a machine gun, always a machine gun,” policy.

The may-issue bill, which would have made all firearms may-issue in Massachusetts, has largely been watered down to nothing. I’ll hand it to John Hohenwarter, I thought we were going to have to bend over with that bill.

Governor Brown has signed some gun control into law. Is converting single shot firearms to multi-shot firearms really a problem? I’ve never even heard of this practice.

This prankster almost gets his ass shot. He’s damned lucky the person who pulled his firearm in self-defense hesitated. From the other point of view, that concealed carrier was lucky he was facing a prankster.

Dog Bites Man: Irrelevant gun control group sues to have an irrelevant pro-gun bill struck down in the courts, in an attempt to gain back some relevancy.

Congrats, gun control folks:Â this AR-15 is legal in all 50 states. You’ve accomplished nothing, except taking us back a few decades in ergonomics.

This is how a gun culture dies. In New York, it’s been death by 1000 cuts. But they are getting pretty close to killing it off for good.

What happens when smart guns collide with dumb ideologies.

Rolling Stone magazine gets fisked by… the NRA? I don’t think I’ve ever seen NRA engage in that style before. See also this response to Rolling Stone.

Everytown is at it again. When people think “mass shooting,” they think of some nut job shooting up a shopping mall, movie theater or school. So why not lump domestic violence tragedies in with that idea and hope no one notices?

Hate to Tell You: They’re All Faking It

When I first saw this article at The Daily Beast, talking about how Chris Christie was “faking it” on gun rights, I had no idea how much of the gun community would echo that sentiment. My reaction was “Well, yeah, but they’re all faking it.” You see, aside from the very rare gunny politician (and they do exist, they just aren’t that common), almost all your politicians arrive at this issue based on whether or not that position is politically expedient. Even your politicians that may pay a lot of lip service to gun rights have a breaking point, and you’d be surprised by how many “great friends” will head for the hills and leave you to the wolves if the vote suddenly starts to turn hard for them. In any of your state legislative bodies, there are legislative friends who really have not been tested, and nearly none of these guys are going home after a hard day of shaking hands and kissing babies to clean their AR-15s. It’s quite easy to say “Oh, I’m with you on this or that,” when they’re talking to your lawmaker to constituent in the comfort of their office. It’s quite another thing to actually take a hard vote for us when there’s not a knock down, drag out fight over it with both sides and the media fully engaged.

So while Governor Christie is not my ideal candidate for 2016 (I’m partial to Scott Walker if he’s interested in running), and while I agree that he’s vetoed a number of bills for us out of a desire to run for the GOP nomination, I have to respect that he’s signaled to us through action rather than lip service. Does that mean I trust him on guns? Not really. But trusting in politicians is usually a fool’s business. Since politicians, as a general rule, act out of political expedience, the trick is to continue making our issue expedient for them. Over the long run, that’ll work out a lot better for you than trust.

Rolling Stone Article on Larry Pratt and GOA

The big question I have is why is the “American Independent Institute” funding a story about Larry Pratt and Gun Owners of America, and why now? I don’t make any secret that I’m not a fan of either Pratt or GOA, and this article outlines a lot of the reasons why. But I’m at a loss for what motivated it. Rolling Stone has been doing a lot of hit pieces on guns lately, at least one of which was supremely stupid. If the purpose was to make gun owners and the gun rights movement look like far-right lunatics, I don’t think the article succeeds at that, since it continually highlights the differences between GOA and the rest of the movement. It does succeed at making Pratt look like a lunatic. But what do our opponents have to gain by attackingÂ Larry Pratt and GOA in such a manner, and attacking now? Are they hoping to raise his profile in the hopes to keep using him as a foil? Hardly seem to be the way you’d go about it if that were your goal.

Gun Control Puritans not Keen on First Amendment Either

Rep. Robin Kelly, a freshman Democrat in the House, is proposing a sweeping infringement on the First Amendment rights of gun owners. The bill would essentially ban any marketing material designed for children. NRA youth days would be banned. It might even become illegal to advertise a club’s Junior Shooter’s program. From the bill:

(a) CONDUCTÂ PROHIBITED. â€”Not later than one yearÂ after the date of the enactment of this Act, the FederalÂ Trade Commission shall promulgate rules in accordance with sectionÂ 553 ofÂ title 5,Â United StatesÂ Code, toÂ prohibitÂ any person from marketing firearms to children. SuchÂ rules shall include the following:

(1) A prohibition on the use of cartoon characters to promote firearms and firearm products.
(2) A prohibition on firearm brand name merchandise marketed for children (such as hats, t-shirts, and stuffed animals).
(3) A prohibition on the use of firearm marketing campaigns with the specific intent to appeal to children.
(4) A prohibition on the manufacturing of aÂ gun with colors or designs that are specifically designed with the purpose to appeal to children.
(5) A prohibition on the manufacturing of aÂ gun intended for use by children that does not clearly and conspicuously note the risk posed by the firearm by labeling somewhere visible on the firearm any of the following:

(A) “Real gun, not a toy.”.
(B) “Actual firearm the use of which may result in death or serious bodily injury.”.
(C) “Dangerous weapon.”
(D) Other similar language determined by the Federal Trade Commission.

Even though commercial speech is generally permitted greater restriction than non-commercial speech, I’m fairly certain this would be unconstitutionally over broad. Unfortunately, we set this precent when we allowed tobacco producers to be thrown under the bus, and our opponents have long tried to get the gun industry treated similarly to the tobacco industry, despite studies that have shown that learning the shooting sports are very beneficial to children.

These people are modern day puritans.

Russian Rifles and Shotguns Blocked from Importation

President Obama issued an executive order blocking importation of Saiga rifles and shotguns. Bob Owens has all the gory details over at Bearing Arms. I have mixed feelings about the issue, because I believe in punishing the Russians with sanctions for their actions in Ukraine. I’d also like to punish them by redeploying several armored divisions to Poland, but that’s not in this President’s nature.

But the other side of the coin is that this move screws two enemies with the stroke of a single pen. Putin is the one enemy, and we’re the other. It’s awfully convenient, don’t you think?

Civil Service vs. The Spoils System

This is a topic I’ve long struggled with: are we better off with modern civil service protections, or would we be better off under the Spoils System? Lately, I’ve tended to agree with Glenn Reynolds “that the entire Civil Service system should be scrapped.” I’m think the civil service tends to perpetuate the opinions and prerogatives of a small handful of elites, and is fundamentally anti-democratic. Not that I always believe “anti-democratic” is a bad word, but it has to serve a purpose in the framework of individual liberty and protecting political minorities from the worst excesses of democratic government. I think civil service protections fail this test. I’d like to highlight his current top comment in Glenn Reynolds post, which I think offers food for thought. His commenter supports a return of the Spoils System:

A real spoils system would have several advantages:

You could get rid of them all by electing a new party to office.

Bureaucrats might be restrained by knowing that they will soon be turfed out into the private sector so they will want rules that they could live under after the next election.

They might also be restrained by the knowledge that if their behavior got to obnoxious they would cost their party votes and potentially end their employment.

Everyone would realize they are partisan hacks and thus not excuse their overreach behind some sort of non-partisan good government BS.

Lately, I’ve been thinking the same thing. The downside is there are people in the civil service right now who are actually knowledgable, do a reasonable job, and not political hacks. But there are far too many political hacks hiding behind civil service protections. These days I tend to agree we’d be better off with the spoils system, provided it was operated with the knowledge and understanding that there’s a lot the government does that requires people who are competent and willing to work hard. I’d hate to see, for example, document preservation exports cut loose at the National Archives because they were hired by the “wrong party.” But I’m willing to concede that civil servants who live by the sword (politics) can also die by it. That’s probably how it should be. An awful lot of civil service protections were generally meant to promote big, permanent government and rule by unaccountable “experts.”

The Importance and Dangers of “Othering” for Our Opponents

I had originally wanted to get this into yesterday’s post, but I couldn’t make it work without descending into “let me ramble on semi-coherently about yet another thing.” That’s a blogging style that I’ll leave to the resident expert, Brady Board Member Joan Peterson. In any kind of political fight you’re usually going to see both sides engaging in “othering,” namely setting your opponents outside the class of reasonable people, and often, even outside the class of people.

Most of us find it highly insulting, and I’m certainly no exception. I don’t like being compared to an unthinking animal, to the bottom rungs of society, or the lowest of the low any more than other people do. I don’t particularly appreciate seeing my liberty interested boiled down to some faceless “corporate gun lobby,” nor do I like seeing my views misrepresented as supporting “deep pocketed gun manufacturers,” or “merchants of death.”

But there’s an important strategic reason that they engage in this, and that’s because, “Hey, let’s go take away something important and meaningful from your friends, family and neighbors,” doesn’t have quite the same motivational ring as, “Let’s go stick it to those dumb, ignorant, stooges of the merchants of death!”Â That’s the first strategic goal of othering; people need an enemy and villain. Your friends, family and neighbors don’t make great enemies and villains unless you’re demented. So you have to be convinced that “those people” aren’t any of those things. For us, Bloomberg makes a great villain. He others himself. How many of us have megalomaniacal billionaires as friends, family or neighbors? No one? Yeah, that’s what I thought.

But there is a second prong to othering, one that can be introduced throughÂ this article by Tony Canales that speaks of liberal gun owners:

Writer Christopher Ketcham essentially comes out of the gun-ban closet and admits, openly, that as a Way-Lefty he and a number of his friends still like their guns. Furthermore, the reasons to have firearmsÂ essentially parallel the very rationale of the Founding Fathers, that being of the need for the average citizen to oppose governmental tyranny as well as having the ability to defend oneself when being confronted by criminals and wildlife bent on harm.

The other purpose of it is to silence those people on your own side of the cultural divide for fear that they will be likewise othered into the negative cultural stereotype. In short, othering helps keep liberal and moderate gun owner’s mouths shut, and prevents them from speaking out. Anything we on our side do that makes people feel uncomfortable about joining us (I don’t know, like carrying AR-15s to Chilis at the low ready) only helps the other side other us.

But there is a downside to othering for our opponents: the crap they say about us is highly antagonistic to ordinary gun owners. Their othering can be a powerful means to bring more people into political engagement with the gun rights issue. When they accuse NRA of being “the corporate gun lobby,” it might be laughably false, but most gun owners aren’t NRA members. When they mention that gun owners only live in places that don’t have roads, are stupid for owning guns, and presumably also lack proper dental care, that insults about 80 million Americans, which is well more than half of the electorate if they all voted. Our opponents have a habit, going back many years, of taking thingsÂ too far, of overreaching, and losing. What I worry about is seeing the same thing on my side of the issue.

So “othering” is a tactic that pretty much everyone uses in political battles. It’s distasteful, but it’s reality. But one can take it too far, and fortunately for us, our opponents do a lot of the hard work for us when it comes to bringing more people into the issue. I think it’s wise to keep their folly in mind when we look at our own side’s behavior.