January 2016 – Page 4 – Shall Not Be Questioned

Greg Abbott’s Constitutional Proposals Would Have Sabotaged Heller & McDonald

Texas Governor Greg Abbott is going to ask the Texas State Legislature to call for a Constitutional Convention, growing the number of states who have already called for one. In addition, he’s laid out a number of proposed new amendments in excruciating detail. Key features are:

Prohibit Congress from regulating activity that occurs wholly within one State.
Require Congress to balance its budget.
Prohibit administrative agenciesâ€”and the unelected bureaucrats that staff themâ€”from creating federal law.
Prohibit administrative agenciesâ€”and the unelected bureaucrats that staff themâ€”from preempting state law.
Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
Give state officials the power to sue in federal court when federal officials overstep their bounds.
Allow a two-thirds majority of the States to override a federal law or regulation.

Most of these would represent improvements, but I think number six is a bad idea. It’s a bad enough idea I’d reject the whole proposal just to get rid of this bad idea. If this had been in place, Heller and McDonald would have both lost. You could go through and find numerous other cases that have expanded civil liberties that would have lost.

I’ve never agreed with conservative arguments about judicial activism and judicial restraint. Much of what conservatives call judicial activism are judges doing their jobs. If you ask me, the Court is far too respectful of democratic prerogatives of legislatures.

Perhaps the answer is to subject the federal courts to more democratic accountability. I’ve become convinced more recently that perhaps the founders were wrong to make federal judges appointed for life, with no recourse for the people. I’m open to action on this front, but not the kind of populist, judicial minimalist garbage Abbott is proposing here.

Harrisburg & The Great American Outdoor Show’s Showdown

Merriam-Webster defines extortion as “the act or practice of extorting especially money or other property; especially: the offense committed by an official engaging in such practice.”

The mayor of Harrisburg who has made clear that he hates NRA and its members went to the press whining that NRA isn’t engaging in pay-for-play for hosting the Great American Outdoor Show in his town.

As part of the deal with the county to host the show, NRA did agree to support regional grants in accordance with the typical rules of the NRA Foundation’s policies and by-laws. Just like your local Friends of NRA banquet gives at least 50% of the money to regional grant requests, the Great American Outdoor Show program is following the same model.

Harrisburg’s mayor is fuming that NRA is holding true to the agreement and his city isn’t the automatic, pre-determined grant winner every year. Apparently, NRA did make the offer to fund a smaller grant this year, but the Mayor threw a hissy fit when he learned they wouldn’t agree to make that a set fund for him annually in direct violation of the NRA Foundation’s by-laws. So, he seems to have rejected their grant offer.

The city officials are fuming since they thought the cash would pad their budgets each year, and now they learn that other worthy area entities in need will benefit. This will not stand for Mayor Eric Papenfuse and Police Chief Thomas Carter who believed they would be the exclusive beneficiaries of the grant request process. As it is, NRA already pays somewhere around $200,000 in amusement taxes to the city and school district. Plus, the city gets the tax revenue from the millions brought in by vendors, hotels, eateries, and other sales associated with the event. But that’s not good enough.

So, when the Mayor and Police Chief were angered to learn that the rules and by-laws wouldn’t be bent to hand the cash to them, they demanded a bigger payoff in other forms. They wanted to increase the rate that NRA would have to pay for off-duty police officers to assist with the event. Since the rate was apparently agreed to be on the low side, NRA offered to pay more, working up to a 33% increase over the next three years. This was not acceptable to the City, and the mayor demanded an immediate 67% increase. Since the rate the Mayor wanted apparently wasn’t remotely market rate compared to even larger cities, NRA has now turned to the county and departments from other cities who will likely gladly take the money. Harrisburg now loses $10,000 in fees associated with that deal.

However, that wouldn’t stop officers from taking vacation time to work the NRA show, something that has apparently been done with the support of the department for nearly 30 years. Since Harrisburg has now declared war on the Great American Outdoor Show, the Police Chief is banning his officers from taking vacation during that period so they can’t earn extra money from the huge event. He’s also going to mandate overtime to more patrolling to try and keep them away.

While the behavior may not meet a legal criminal definition of extortion, it sure does seem to me like the quotes in the article by the mayor and police chief fit the spirit of the dictionary definition of the term.

Obama’s “Town Hall”

Because I don’t have cable, I had to watch President Obama’s “Town Hall” forum 10 minutes at a time on “CNN Go” free trial, so I missed a lot of it. Based on what I did see, I think the forum was a lot less stacked toward the gun control side than I expected it to be. Obama was asked some hard questions, which he not so delicately danced around. Overall, I don’t think things went all that well for him.

He did an awful lot of describing serious federal crimes as “loopholes,” perhaps channeling Joan Peterson’s “if it happens, it’s legal” philosophy. But unlike her, he knows better. This was his normal schtick of throwing out half-truths and outright lies to low-information types, while absolutely enraging people who actually understand this stuff.

Why Have the Dems Become so Gun-Ho for Gun Control?

Bob Owens did a tweet string that explains the motivations behind the Dems embracing gun control. I agree that philosophical progressives are terrified of an armed citizenry, because such an idea runs counter to technocratic central planning, but I view most politicians as opportunists, rather than die hard ideologies. There’s two reasons the Dems are so crazy for gun control today.

One is the Democrats mounted a comeback strategy that culminated in retaking Congress in 2006 largely by running “blue dog” candidates that were good on guns and could win in their local districts. The theory was that the gun vote could deliver a lot of single issue voters, and would therefore help Democrats hold their seats. NRA issued a lot of endorsements to blue dogs in the 2010 election, despite taking a lot of crap from their members. They bent to the will of their members and pulled Harry Reid’s endorsement largely because he voted in favor of Sotomayor and Kagan. The blue dogs were laid to waste in the 2010 election. Democrats took the lesson, rightly or wrongly (I would argue wrongly), that there was no use chasing gun votes, since they weren’t reliable for Democrats.

The second reason the Dems are so gung-ho for gun control in 2016 is because of the vast sums of money that Mike Bloomberg’s bringing to the table. He’s not necessarily bringing all that money in for guns, but you can bet when a big donor is willing to dump a million bucks worth of ad buys into a state-level race, even of those ads aren’t on guns, politicians will start dancing that donor’s tune on gun control if they know that’s a big issue for him.

The older I get the less I think politics has really anything to do with political philosophy and reason. Sure, there has to be enough of that for the chattering classes, but for the most part it’s really just a bunch of hucksters, grifters, and opportunists vyingÂ for media timeÂ in order to manipulate poorly informed people they are worth coming out for and checking their name in the box at the next election. The people who are good at that win elections, and the people who suck at it lose.

What keeps me from becoming completely jaded is that I do believe it’s possible for motivated groups of people to play this game, manipulate the manipulators, and come out ahead. What will make the Democrats listen on the gun issue? A motivated group of people (it would probably only take a million nationwide) willing to be visible in the Democratic coalition and willing to withhold their votes and money solely on the issue of gun rights. If we had that, they’d start to listen.

Blogaversary: Number Nine

It was nine years ago today, January 6, 2007, that I got started with this blog, and I do intent to make it to a full decade. That’s a lot of photons under the (FiOS) bridge. For those of you who have been reading from the beginning, thank you. For those of you who haven’t been reading that long, thank you too.

I always imagined my graceful exit from this genre would involve some decent protections for the Second Amendment from the courts, and the political fight headed in the right direction. I’m feeling pretty good about the latter, but not at all about the former. The latter could be unraveled with one bad election. The GOP won’t be in power forever, and at this point the Dems are fully dedicated to gun control.

I might not have the time anymore to do 10 posts a day, but it is not yet time to throw in the towel. We’re in a better place than I would have thought we would be after eight years of Obama, but there are very real threats on the horizon if the GOP continues to be a three ring circus.

By the time my Tin anniversary rolls around next year, we’ll know who the next occupant of the White House will be, and God help us no matter how this goes. But I will say this, if it’s Hillary Clinton, the Second Amendment will effectively be dead.Â The one thing I’d hate is to retire from this blog at some point in the future because all is lost.

Nick Johnson in WSJ: “A Glittery Gun-Control Distraction”

Prof. Nick Johnson has an article running in the Wall Street Journal which gives people a lot of missing background on Obama’s Executive Orders in regards to new guidance on when an FFL is required, including the previous history of overzealous prosecution, and then the later double cross with the “kitchen table dealer” actions by the Clinton Administration.

Now President Obama proposes moving the furniture around again. The ATFâ€™sÂ new guidanceÂ on the matter says that storefronts are irrelevant: â€œit does not matter if sales are conducted out of your home, at gun shows, flea markets, through the internet, or by other means.â€ The agency also emphasizes that â€œcourts have upheld convictions for dealing without a license when as few as two firearms were sold.â€

As someone pointed out, if you go to the application for an FFL:

So they are going to require gun show sellers to get FFLs, but they aren’t going to accept FFL applications for people who only do business at shows. One reason most machine gun possession prosecutions can no longer happen under the National Firearms Act (rather than 18 U.S.C. Â§ 922(o)) is because it has been held by the courts that the government can’t charge someone for failure to pay a tax that the government refused to collect. This would seem to me to be a similar situation.

If the Obama Administration were to actually reverse or partly reverse Clinton-era policies meant to shut down hobbyists or part-time FFLs, he might actually accomplish something in terms of getting more people currently making marginal sales licensed again.

Why I’d be Angry at Obama if I Favored Gun Control

The positive reaction of the gun control crowd to Obama’s executive orders frankly astonishes me. It would seem that Elliot Fineman of the National Gun Victims Action Council is the only group that’s willing to see this for what it is. When you don’t have a seat at the table, what have you got to lose, really?

Headlines like this are now spread all over the media, “Obama closes gun background check loopholes with executive action.” I can point to dozens of other stories talking about how Obama is now requiring background checks at gun shows and with Internet sales. The media has fallen for this maneuver hook, like and sinker. It’s not surprising, because understanding the truth requires knowing a thing or two about federal gun laws, a topic with which most non-gun people have little or no familiarity.

Word is spreading like wildfire that Obama closed these background check loopholes, when in reality all he did was have Loretta Lynch wag her finger and issue vague threats of prosecuting people selling guns for being engaged in the business without obtaining an FFL. As Volokh Conspirator Jonathan Adler pointed out at the WaPo, “In other words, it is â€” as the document says â€” a guidance, and not a substantive rule. It has no legal effect.”

People are being deceived into believing there’s been substantive reform on background checks. That can only serve to dampen enthusiasm among the general public for further measures, “Didn’t Obama fix this problem? It was all over the papers.”

President Obama may have done himself a tremendous favor, in terms of pleasing certain parts of the Democratic base who will cheer these headlines, completely unaware this represents no substantive reform, but he’s done the gun control movement no favors. If I had to bet, the gun control groups probably realize this, but are concerned about the consequences of not seeming to enjoy their bone. Beggars can’t be choosers.

More on ATF 41P

Josh Prince, who is an attorney familiar with this area of law, has a summary of the 41P rule released last night.Â He notes that it has not yet been published in the Federal Register, so the clock is not currently ticking toward implementation. He also notes that there’s vagueness issues when it comes to “responsible persons”:

Throughout the final rule, ATF seemingly proposes several different interpretations of what constitutes a Responsible Person based on the entity type. This results in serious questions, such as whether the language is overly vague. Are now all employees who can possess a firearm of an LLC/Corp RPs? And also, whether ATF is treating different fictitious entities differently in violation of the law. Are trustees who can possess firearms of the trust RPs, but employees who possess firearms of LLC/Corps not? Moreover, what is the basis for treating non-licensees and licensees differently? The exact language for an RP can be found on page 238-239, which declares

Read the whole thing.

Final Version of 41P NFA Trust Rule Released

This is interesting. Originally 41P was going to require CLEO signoff on all NFA transfers, even if you were a person on a trust. I don’t have time to read thoroughly and comment as I need to hit-the-hay soon, but let the overnight and early-morning discussion begin:

SUMMARY: The Department of Justice is amending the regulations ofthe Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm undertake National Firearms Act(NFA). This final rule defines the term”responsible person,”as used in reference to a trust, partnership, association, company, or corporation; requires responsible persons of such trusts or legal entities to complete a specified form and to submit photographs and fingerprints when the trust or legal entity files an application to make an NFA firearm or is listed as the transferee on an application to transfer an NFA firearm; requires that a copy of all applications to make or transfer a firearm, and the specified form for responsible persons, as applicable, be forwarded to the chief law enforcement officer (CLEO) of the locality in which the applicant/transferee or responsible person is located; and eliminates the requirement for Â certification signed by the CLEO. These provisions provide a public safety benefit as they ensure that responsible persons undergo background checks. In addition, this final rule adds a new section to ATF’s regulations to address the possession and transfer of firearms registered to a decedent. The new section clarifies that the executor, administrator, personal representative,or other person authorized under State law to dispose of property in an estate may possess a firearm registered to a decedent during the term of probate without such possession being treated as a ”transfer” under the NFA. It also specifies that the transfer of the firearm to any beneficiary of the estate may be made on a tax-exempt basis.

If I am to understand this correctly, much like with a Type 03 FFL application (C&R) you have to inform the CLEO, but you do not need to get his or her sign off. This does not only apply to trusts, but to individual applications as well. Did the Administration just blink?

If I’m not reading something wrong at this late hour, it would seem that malicious compliance can make a real difference.

Attorney General Loretta Lynch Clarifies FFL Rule

I suspect President Obama is hoping for ignorant crap like this from the media to make it look like he’s really doing something:

BREAKING: Obama moves to require background checks for guns bought from dealers online, at gun shows.

â€” The Associated Press (@AP) January 4, 2016

This has always been the law if you have a Federal Firearms License, and it’s always been illegal to be selling guns for “livelihood or profit” without first obtaining an FFL. The new EOs change nothing in that regard. But we do have some guidance from the Attorney General that indicates the Administration may indeed try to prosecute marginal cases it previously would not have:

Lynch insisted Monday that the new guidance on the gun show loophole sets “clear, definitive standards” for anyone who wants to sell firearms. However, the new guidance does not include a specific number of guns that must be sold to qualify as a dealer, since existing law does not specify a number.

However, court rulings have set a precedent that says a person could sell as few as one or two guns and still be considered a dealer, depending on the circumstances. For instance, Lynch explained, if an individual sells a gun clearly for profit, or if they buy and sell a gun kept in its original packaging, they may be considered a dealer.

“It’s important to note the hobbyist and collector exception is still there,” she said. Now, though, dealers can no longer “hide behind that.”

The ATF will engage in a “business educational initiative” in the first part of 2016, Lynch said, to help gun dealers, hobbyists and collectors understand the new guidance. This effort will target gun shows, flea markets and online dealers. Lynch added, “We will be looking for those individuals who seek to avoid registering.”

How many of you have a big tupperware bin full of “original packaging?” I certainly do. A few of my rifles just came in a case. Is that “original packaging?”

So this is not to be part of any rule change, but merely a policy decision to prosecute “gun dealers, hobbyists and collectors,” under the “new guidance.” Rather than change the rule, they will use the current vague rule to send “hither swarms of Officers to harrass our people, and eat out their substance.” Though, in this case, it’s not mere harassment, but an intent to imprison.

They know if they don’t put the dampers on the growing gun culture, their dream of destroying the Second Amendment will never be realized.