April 2015 – Shall Not Be Questioned

Magazine Ban Partial Repeal Dead in Colorado

I’m sorry to report that it appears Dudley Brown was successful in scuttling a Democratic proposal to raise the magazine limit in Colorado from 15 to 30 rounds.

Caldara said Wednesday that he had not yet received the letter, but agreed that it would be impossible to pass a 30-round limit this year with 26 Republicans in opposition. Supporters of the plan would need every House and Senate Republican behind it, plus a few House Democrats.

Years from now, when Coloradans are still living with a 15 round limit, you can thank Brown and all the people who drink the RMGO kool-aid Â for it, because I think that’s going to be the result. Colorado’s demographics aren’t going to improve from here for Republicans. Unless there’s a major realignment, it’s hard to see how we’re getting rid of that limit. Maybe we’ll get extraordinarily lucky in the courts.

That said, I don’t want to get into endless bickering over this. It’s time to move on and keep pushing for either full repeal, or whatever we can get out of the Democrats, who are likely to control the Colorado House for some time.

UPDATE: I know I have a few Colorado readers. What two Democrats are potentially vulnerable in 2016 or 2018 in the Colorado House? How likely is the GOP to hold the Colorado Senate in a non-wave year?

Rick Snyder Running for President in 2016?

Jim Geraghty discusses the rumors that Michigan Governor Rick Snyder is running for the 2016 GOP nomination. My opinion is that Chris Christie is enough of a squish on gun rights, and that’s enough squish for one race. We remember that Rick Snyder vetoed a package of pro-gun bills sent to him by the Michigan legislature. We don’t forget, Governor. That’s why we’re successful. If Snyder enters the race, I don’t see too many pro-gun people backing him in the primary.

Philly Judge Allows NRA Suit to Go Forward

The city wanted to put a stop to the lawsuit challenging their illegal gun ordinances while the constitutionality of the bill was fully litigated, but a judge has decided that the suit may move forward, despite the battle over constitutionality. This is very good news, and a welcome contrast with the judge in Pittsburgh who stayed the suit in Pittsburgh early in March.

Yesterday, an appeals court refused to lift the stay on the Pittsburgh case.

Wednesday News Links 04-29-2015

Hard to believe that April is almost over. The good news is that my report has been largely delivered, so I have more writing energy to devote to blogging. I was doing a security and infrastructure analysis for a client that turned out to be a good bit lengthier than I had thought, so hence the mad scramble to finish it. When someone is paying you five figures for a report, it has to be written far more carefully and with far greater scrutiny than a blog post. I only wish I could get paid $500 per page here! But here’s some news for free anyway:

With the late situation in Baltimore is just another reminder of what the law ultimately means, and if you’re not willing to see people die to keep sharp, pointy things illegal, you probably shouldn’t have a law. Oh, and good thing O’Malley disarmed everyone before all this, otherwise someone might get hurt.

Harrisburg ordered to release donor information for their legal defense funds.

Civil Rights victory for non-citizens.

Thirdpower noticed something in the Brady Staffer who was plaintiff on the Lucky Gunner suit. Brady keeping a gun owner database? Why? Of course, it could be an epic troll, in which case well-played. Miguel noticed too, and thinks it might be a violation of Florida law if true. Probably other states too.

Remember folks, guns are bad because there might be accidents involving children. But teaching children to stay away from guns is evil. Of course, it makes sense when you figure without tragedies to exploit, the other side doesn’t really have much in the way of arguments.

Oregon State Senator Betsy Johnston: “New Oregon Gun Law Will Accomplish Nothing”

Bloomberg’s Everytown: We’ll debate any expert, anywhere, anytime, as long as they agree with us.

Veto threat coming from the New Hampshire governor on Constitutional Carry.

Miguel asks whether Maryland National Guardsmen are being forced to play security theater in Baltimore.

I had no idea that Albertsons supermarkets banned firearms in their stores. Good thing I don’t shop there. Though,Â the reason I don’t shop there is because their supermarkets suck.

Here’s hoping Tim McGraw is continuing to Dixie Chick himself.

Senator Tim Kaine loves himself some gun control. I am very alarmed that Virginia is on its way to becoming a solid blue state, thanks to out of control growth of our federal government. This will be very bad for NRA.

Our Congressional seat will be open in 2016. The Dem lining up called for a door-to-door confiscation bill of all semi-automatic firearms after Sandy Hook. This is still a swing district, and our GOP sucks, but this guy can’t win. He’s from New Jersey, originally, which should surprise no one.

Caleb asks about whether the firearms industry should tighten admission standards for media at trade shows. If you just required them to have a business card and have posted something about guns in the past week, that would weed out a huge number of unserious people.

Civil Rights Victory in Illinois. As a gun owner, I would never see a therapist. This is the reason why.

New Jersey is a may-issue state when it comes to gun ownership.

Â The Firearm Blog takes a look at the new AK-12.

Hey, maybe if so many people weren’t constantly beating the confiscation drum, this bit at the Daily Beast might actually have some credibility.

Politifact admits handgun waiting period essentially useless. That assumes the goal is public safety, and not frustrating people out of exercising their enumerated constitutional rights. Interesting timing, because Clayton Cramer has a new paper out on this very topic.

Remember, our opponents in the gun control movement are often horrible people.

Samuel L. Jackson Talks About Guns & Gun Violence

The interviewer is insufferable, but Samuel L. Jackson talks about playing with toy guns growing up, and learning to shoot.

Watch: Sam Jackson Shuts Down A Stupid Reporter

UPDATE: It would seem this sites embedding does not work correctly. Just click on the link.

Guided Bullets

Kind of takes the fun out of it, don’t you think?

Full link here.

Civil Rights Defeat in the 7th Circuit

The 7th Circuit Court of Appeals has been more pro-gun than most federal circuits, but asking it to strike down an assault weapons ban was apparently a bridge too far. Easterbrook’s opinion essentially says because assault weapons are relatively recent technology, they can be circumscribed:

But instead of trying to decide what â€œlevelâ€ of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification orÂ those that have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ see Heller, 554 U.S. at 622â€“25; Miller, 307 U.S. at 178â€“79, and whether lawâ€abiding citizens retain adequate means of selfâ€defense.

Really? Would Easterbrook be OK with importing this kind of reasoning into First Amendment jurisprudence? The Founders could not have possibly envisioned the Internet, so should it be afforded no protection whatsoever? Can states experiment with publication bans? The Food Babe spreads lies and dangerous information, can we just take her offline?

Easterbrook argues that the banned weapons may be useful for self-defense, but there are plenty of substitutes that citizens can use. DC unsuccessfully made the same arguing to try to save it’s handgun ban. How is this not ignoring Heller? This is probably the most jaw dropping part of the opinion for me. Easterbrook argues that while it might be true that these laws are largely useless, if it makes people feel safe, that’s a compelling enough reason to justify government restriction. Again, do we feel OK importing this reasoning into other contexts? If an officer feels like there’s some pot plants in that house, is that ground for breaking down the door? Do we need to suppress free speech because it makes some precious snowflakes in college “feel unsafe” these days?

Judge Manion wrote a dissenting opinion, essentially arguing that the majority was gutting the Second Amendment, and ignoring Heller. A favorite line of mine:

Here, the court comes not to bury Miller but to exhume it. To that end, it surveys the landscape of firearm regulations as if Miller were still the controlling authority and Heller were a mere gloss on it. The courtâ€™s reading culminates in a novel test: whether the weapons in question were â€œcommon at the time of ratificationâ€ or have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ and â€œwhether law-abiding citizens retain adequate means of self- defense.â€ Ante at 7â€“8.

The problem is Heller expressly disclaimed two of the three aspects of this test; and it did so not as a matter of simple housekeeping, but as an immediate consequence of its central holding. It held as â€œbordering on the frivolousâ€ arguments thatÂ recognized a right to bear only those arms in existence at the time of ratification. Heller, 554 U.S. at 582 (â€œSome have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.â€). Likewise, it expressly overruled any reading of the Second Amendment that conditioned the rights to keep and bear arms on oneâ€™s association with a militia. Id. at 612. (â€œIt is not possible to read this as discussing anything other than an individual right unconnected to militia service.â€). For this reason, there is no way to square this courtâ€™s holding with the clear precedents of Heller and McDonald.

I certainly hope this case gets appealed. The majority opinion seems exceptionally weak here, even compared to some of the “intermediate scrutiny two-step” opinion I’ve read.

More on Failed Brady Suit of Lucky Gunner

It was pretty apparent when the judgement came down that the spin was going to be: “Look at this poor family, forced to pay $280,000 by the evil gun lobby who killed their son.” Well, that didn’t take long, did it? John Richardson over at No Lawyers, Only Guns and Money did some diggingÂ (with the help of an observant reader), and it turns out that the victims in this case are on the Brady payroll.

It would seem likely, in this case, that the Brady Center is going to pick up the tab for the lawsuit. I’d bet that if fundraising letters haven’t already gone out begging for donations to help the family out from under the thumb of the evil gun lobby, those fundraising letters are surely being prepared. Still, with these kinds of fees, it’s hard to imagine how filing frivolous suits like this is going to be a winning strategy for Brady in the long term. I suspect, however, that they are desperately trying to carve out a niche in a space increasingly dominated by Mike Bloomberg.

Dave Hardy wonders whether it’s a good thing to leave Mike Bloomberg with a monopoly over the gun control movement. I tend to think so. The greatest danger we face from Bloomberg is from his deep pockets. In any game where it comes down to who can spend more money, he’ll probably beat us (such as ballot measures). That money is going to be there regardless of whether the Brady Campaign and Brady Center continue to operate.

Bloomberg’s biggest liability is how well he self-vilifies, and how poorly he plays in flyover country. Shannon Watts’ organization once looked like it could be formidable, but goofs and gaffes she’s made have seriously sapped her organization of credibility. Meanwhile, the Brady Campaign and Center, though both shadows of their former selves, still achieved a great deal in the gun control movement. It would be good to see that slide into the dustbin of history.

I suspect, however, that the more likely future for Brady is along the VPC model, where the organization maintains a skeleton crew, funded largely by outside foundations, maybe even including Bloomberg. It would be better for Bloomberg to control the Brady organization, and keep it subservient, rather than letting it collapse, with all the bad headlines for gun control that will follow after such a well-regarded, pioneering organization folds up. That kind of thing would not go unnoticed in DC, either by policymakers or politicians.

Minnesota Governor Threatening Veto on Suppressor Bill

We’ve done very well getting bipartisan cooperation on passing a suppressor hunting bill in Minnesota, only to draw a veto threat from Governor Mark Dayton, who notes:

â€œNowhere in the Second Amendment to the United States Constitution does it refer to the right to bear a silencer,â€ Dayton wrote in the letter. â€œTo allow gunshots to be silenced increases the danger to law enforcement officers, and to innocent bystanders.â€

It doesn’t refer to the right to bear pistols either, yet that was the key arm at issue inÂ Heller. Can we give this stuff more than a soundbite’s worth of thought? Is that really too much to ask? The Governor also displays his ignorance of the subject. A silencer doesn’t silence: it takes a shot from being deafeningly loud to being kind of loud. Because rifle bullets used for hunting travel at supersonic speeds, even with an unsuppressed rifle, the target will be hit before the sound of the gunshot reaches it.Â Any public safety argument that revolves around the sound of gunfire being any kind of public safety benefit are ridiculous, as is the Governor if he vetoes this bill.

The linked article shows how we’re successfully driving this issue. Even thought the article is about Dayton’s veto threat, it still gets out all our key talking points in about suppressors to the general public.Â This is how you chip at the NFA: first, you build a constituency for getting suppressors de-listed, and hunting is one shooting activity where its benefits are apparent.Â Earplugs might save your hearing, but they also masks the sounds of wildlife, or more importantly, the sound of another person nearby you might have missed visually. It’s easier to get these talking points out in the context of hunting than anything else. Second, when you build that constituency enough, and the gun community becomes familiar with the applications and benefits of suppressors, push for having them delisted from the National Firearms Act. Five years ago I would have said getting anything delisted from NFA a pipe dream. Now, I think we have a realistic chance of delisting them in the next decade if the political winds keep blowing in the right direction.

Amish Farmers in New York Denied Gun Rights by SAFE Act

Apparently the SAFE Act is having an unintended consequence for Amish farmers. The Amish maintain a religious objection to being photographed. Before the SAFE Act, private transfers of rifles used to be legal in New York, so the Amish still had means to get a firearm without photo-id. Since SAFE outlawed private transfers, there’s now no way for an Amish person to get around the photo-id issue. New York State has required photo-id for pistol licenses for some time.Â The Shooter’s Committee on Political Education (SCOPE) is meeting with the farmers to presumably discuss a lawsuit.

The Brady Act essentially requires photo-id to purchase a firearm, and ATF has been pretty clear on the matter:

ATF has been asked whether firearms purchasers may be exempted from the requirement for an identification document with a photograph based on religious objections. The Brady law does not provide for such an exemption. All over-the- counter transfers are subject to the photo identification requirement.

The Brady Act may not provide any exception, but the RFRA certainly does. I would think a plaintiff would easily prevail in a suit against ATF for failing to make a reasonable accommodation under the RFRA.

The SAFE act is another matter, however, being a function of state law. The federal RFRA was ruled not to apply to the states under the 14th Amendment, and unlike most other states, New York has never passed a state analogue. I am not aware of whether or not New York provides religious protection through its courts that is greater than the federal courts provide, but it looks like as of at least 1999 they had not. There has, however, already been a case in theÂ New York courts involving this very subject, from that same article linked previously:

In an interesting application of the state constitution’s free exercise clause, the court in In re Miller recently authorized a religious exemption to a requirement that an applicant for a pistol permit must submit a photograph. An Amish man refused to allow himself to be photographed for the permit on the ground that being photographed was against his religion. In lieu of a photograph, he offered to allow himself to be fingerprinted. The court balanced “the importance of the right asserted” against the governmental “needs and objectives being promoted” and concluded that the defendant’s right to free exercise justified an exemption from the photograph requirement. Although the court did not explicitly spell out a compelling interest test, it did note that “the Assistant Attorney General has argued very ably and cogently that the State’s interests in requiring a photograph are ‘compelling,’ extending beyond mere administrative convenience.” Nevertheless, the court decided that the applicant’s free exercise interest outweighed these compelling state interests because a less restrictive means of identification was available.

This would help them if they pursue relief in state court, but it would seem to me that if it is the federal photo-id requirement that is at issue here, the federal RFRA would be the easiest way to force an accommodation here. If the photo-id requirement is a function of the SAFE act directly, and not just an indirect consequence of banning private transfers, it’s good to see there’s existing cases in the New York Court system that make an accommodation for people’s religious practices and beliefs.

SCOPE may want to consider engaging the ACLU, who has shown a willingness to get involved in these kinds of suits that involve Second Amendment rights, but also touch on some of their traditional areas of litigation, like this case. Their presence on the case may play well with old-school liberal judges (who date back to when liberals cared about civil liberties), and they are experienced at fighting cases like this.