February 2016 – Page 4 – Shall Not Be Questioned

Get off My Side

It’s long past time we disassociated Ted Nugent from the NRAÂ by not voting for him for Board. He went off the deep end long ago, and this aging rocker isÂ long past his expiration date as being useful to the cause. Aging, angry boomers are this issue’s past, not its future.

How can you take his statement as being anything other than being anti-semitic? Is that what he’s saying? Because if it’s not he damned well implies it. The international jewish conspiracy is behind gun control? I know more than a few jews who must not be part of the conspiracy then.

I won’t often issue a non-endorsement for the Board, but he needs to go, and the nominating committee should be ashamed of themselves if they keep nominating him. I get that he could probably win by petition, but let him do it. Every endorsement by him of the nominating committee is just another punch in the face by people who want this to be an inclusive movement.

California’s Gun Confiscations a Mess

A few years ago California implemented a program to tie their registration databases into their background check databases, and then create a new database of people who have guns but are prohibited by law from owning them. Sounds great right? Well, only if you’re not a gun owner, or are and believe that these databases are actually accurate, which often times they are not. Â California has been sending police door-to-door as they’ve been going down the list and taking guns, forcing false positives to prove their innocence. Â Now this issue is finally getting media attention.

Phillips says, “It was traumatizing.”

And shocking for the retired nurse, now a stay at home grandma, who’d never been in trouble before.

“My first thought was ‘oh no what did my kid do.’ “

The officers were there for one thing.

“They were looking for the guns, because one was registered to me.”

Phillips didn’t know yet, but her name was listed in California’s Armed and Prohibited Persons Systems. She was now considered someone who wasn’t allowed to own, or be around, firearms. Â So, all of her husband’s guns were confiscated, but not before being laid out on the front porch for neighbors to see.

Read the whole thing. If you spent enough time around pro-gun attorneys you’ll hear of cases far worse than this. You’d be surprised how many stories I’ve heard of mental health commitments being erroneously classified as involuntary, when in fact it was someone voluntarily seeking help.

We already know that a good number of NICS denials are false positives. The 2014 numbers say 14% of challenged denials were overturned, and there were 30,100 persons who have been issued a UPIN number. For those of you not familiar, if you challenge a NICS denial and win, you get a unique identifier that you give to the dealer upon each transaction, which lets the system know you’re cleared despite an erroneous record in the FBI’s database. In a lot of cases, it’s to clear up confusion with someone else with the same name and date of birth who has a criminal record.

So potentially, while California may be reaching a lot of genuinely prohibited persons in their wide dragnet, they will have a very large number of false positives. This is yet another reason we won’t agree to registration. We know from the registry the federal government already runs, the NFRTR — which is the database that contains NFA items like machine guns, short barreled rifles and shotguns, and silencers — that the registry is a bloody mess that ATF has been trying to quietly clean up for years.

If California did not have registration, they could never have triedÂ this kind of “common sense” approachÂ using shoddy data that’s going to end up with and uncomfortable number of old ladies proned out on their front porches. And criminals? They don’t register their guns with the police.

Weekly Gun News – Edition 25

I was worried I wouldn’t get enough tabs for gun news this week, but I think I have enough for a news links post. Things have been busy for me this week, so not as much time to even collect stories. But I do have enough this week to channel my inner Instapundit:

Dave Kopel has some analysis of the decision in Kolbe v. Hogan, which vacated the ruling that had upheld Maryland new semi-auto ban. Also, see Dave Hardy’s commentary.

Eugene Volokh notes that the 11th Circuit has agreed to an En Banc hearing of the “Docs v. Glocks” law in Florida. I share many of the Professor’s First Amendment concerns, but the medical establishment hasn’t exactly covered itself in glory either.

It bears repeating: Not every criminal is going to be intimidated by the sight if your gun. Where some see trouble, others see opportunity.

Yes, next question: Should you carry OC spray?Â The law generally frowns upon shooting belligerent assholes. Especially if they are women.

Bloomberg is spending big in Nevada for his private transfer ban initiative. Ballot measures should be unconstitutional. They violate the Constitution’s guarantee of a Republican form of government. They also almost always favor the party that spends the most money.

Blue state gun panic: Gun licenses on the rise in Massachusetts. Also in New Jersey.

Analysis True: “Democrats have confused opinion polls with actual voter sentiment on guns for decades, and it led them to defeat every single time.”

Anti-gun activists in Ohio are trying for a ballot measure to amend the state constitution to end preemption in the Buckeye State.

In Oregon, they are looking to remove the default proceed on gun sales, and set up a situation where the state could ban all gun sales just by refusing to do background checks, or from sheer bureaucratic incompetence. Not just Oregon, but Delaware too.

In Florida, gun bills are under attack.

Constitutional Carry introduced in Michigan.

Breitbart: Concealed Carry permit fees are an attack on 2nd Amendment rights. I would argue the permit is too.

States by party affiliation. How red or blue is your state? Pennsylvania is listed as “Competitive.”

“You probably wouldnâ€™t trust most politicians to babysit your kids. So why do you trust them with bigger issues?“

GOA Sides With the Anti-Gunners

Opposition to the McAuliffe deal has been nearly universal on the anti-gun side. Even Bloomberg’s Everytown, which is generally willing to bend to reality much of the time is pretty angry about it. I don’t blame them. If I were in their shoes, I’d be pretty pissed off too if a big issue like reciprocity was traded for the trifle they got in return. It would be like if a Governor we backed agreed to an assault weapons ban in exchange for some extra money for public ranges and more wildlife conservation.

But the fact that the anti-gun groups are engaged in an effort to twist McAuliffe’s arm out of the deal doesn’t stop a group like Gun Owners of America from joining them. They are urging their members to call their representatives and senators to oppose the deal. We’re fortunate that it has passed the Senate, so I’m not certain GOA had too much of a negative effect.

Their logic for opposition relies on two items. The first is that the voluntary checks is just the first step toward making them mandatory. I’ve long said, legislatures can always pass gun control in the future, and we know they already want to ban private transferring of firearms. The key is whether the concession weakens your position and arguments. Hate to tell you all, but when we argued that NICS would be the bees knees, in leu of waiting periods, we already largely made that concession. State police at gun shows to do voluntary checks doesn’t really further weaken our position. The camel got his nose under this particular tent in 1994.

GOA’s other premise is that there’s no state analogue mens rea requirement of “knowingly” in the state mirror to the Domestic Violence Restraining Order prohibitions from the Lautenberg Amendment. Looking at the federal statute, 18 USC 922(g)(8), I’m not seeing where it says knowingly. The Virginia bill does in fact say “knowingly.” I’m pretty sure if you can show that the person knew they were subject of a DVRO, and knew they were in possession of a firearm, the mens rea requirement is fulfilled. I admit, I don’t really understand GOA’s argument here. Proving mens rea is always part of the state’s burden for a serious offense even if the statute does not explicitly say so.

So if this deal ends up tanked, and we lose all that reciprocity, you’ll be able to thank Larry Pratt right alongside Mike Bloomberg, Josh Horwtiz, and Ladd Everitt.

OSHA Targeting Ammo Makers

Joe Huffman has a story, which is a follow up from his previous story about OSHA possibly abusing workplace rules. It is based on someone who works at a major ammo company, talking about how OSHA is demanding warning labels on ammunition:

Then a couple years ago OSHA approached them and said, in essence, â€œYou need to put warning on all your products because indoor range employees are at risk from exposure to lead.â€

What?

The lead issue is probably the biggest threat to shooting out there right now. Remember, Obama’s executive orders told every agency to look into ways to screw us. Has OSHA found a way? Or are they merely following the bureaucrat’s creed:

Regulate All The Things

Breaking: Major Win in 4th Circuit Over Maryland Assault Weapons Ban

Finally, judges who are willing to take Heller and McDonald seriously, and offer us serious Second Amendment protections. In short, the lower court had ruled Maryland Assault Weapons Ban was constitutional, having applied intermediate scrutiny. The three-judge panel of the Fourth Circuit Court of Appeals has now vacated that ruling and ordered the lower court to apply strict scrutiny. Note at least one well-known blog is reporting this ruling struck down the ban, but it does no such thing. It merely vacates the lower court ruling and demands the lower court reconsider with the highest standard of review. Though, it is clear from the Court’s language that they do not look favorably on the ban. Here’s a passage talking about “Large Capacity Magazines.”:

Likewise, the record in this case shows unequivocally that LCMs are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States. In fact, these magazines are so common that they are standard.

Finally! A court willing to not only find that they are in common use, but one willing to admit that carries with it serious Second Amendment considerations! Granted, this could still be overturned en-banc, and appealed to the Supreme Court, but if this holds, it will be the end of Maryland’s assault weapons ban. It will be the first instance of an assault weapons ban thrown out by the courts.

Contrary to the district courtâ€™s conclusion, the fact that handguns, bolt-action and other manually-loaded long guns, and, as noted earlier, a few semi-automatic rifles are still available for self-defense does not mitigate this burden.

That’s a refutation of the substitution argument that Eugene Volokh is all too fond of. Quite a step for the federal courts to take. This is not a finding of unconstitutionality, it should be noted. They have only directed the lower court to apply the correct standard of scrutiny.

Because the district court did not evaluate the challenged provisions of the FSA under the proper standard of strict scrutiny, and the State did not develop the evidence or arguments required to support the FSA under the proper standard, we vacate the district courtâ€™s order as to Plaintiffsâ€™ Second Amendment challenge and remand for the court to apply strict scrutiny in the first instance. This is not a finding that Marylandâ€™s law is unconstitutional. It is simply a ruling that the test of its constitutionality is different from that used by the district court. The State should be afforded the opportunity to develop its case in light of this more demanding standard, and Plaintiffs should be permitted to do so as well.

This is still very good. Strict scrutiny is a high level of review. One disappointing thing in the ruling is that they rejected the equal protection argument in regards to exempting retired law enforcement from the ban:

For all these reasons, we affirm the district courtâ€™s decision on the equal-protection issue. Retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

There’s that conservative love of law-and-order again. Police can super-citizens. Like you and me, only better. Still, this is a pretty significant win. Let’s hope by the time this bubbles back down and then back up we might have a friendlier Supreme Court.

Now This is Some Spin

Hillary Clinton had Iowa locked up heading into game time. She was ahead of Bernie by twelve points just a few weeks ago. Take a look at RCPs track, and think about when Hillary turned up the gun control talk big time?Â Last year this time she was ahead by 52 points. Then Hillary started opening her mouth and talking, and as often happens when Hillary does that, she started blowing her lead. She had Gabby Giffords out in Iowa helping her campaignÂ at the last minute. She’s been pushing much more heavily on gun control in New Hampshire, where Bernie is creaming her. Hillary hasn’t been on top in New Hampshire polling since early December. When did those gun control ads start Hil?

Now with all that data screaming that gun control isn’t helping, and may actively be hurting Hillary, “The Trace,” Bloomberg’s media mouthpiece, is trying to argue that gun control saved Hillary. Go ahead and read that wonderfully delusional piece. Careful where you step though.

Commentary on the Iowa Caucuses

There’s really only one thing I care about in the 2016 election and that is the composition of the Supreme Court. I also wouldn’t mind someone who’s willing to put Putin, Iran, and the Chinese in their places and hopefully avert some damned fool thing that ends up startingÂ World War III. But the Supreme Court is my top issue.

What we’re seeing is a three way race between Cruz, Trump, and Rubio. I don’t honestly think any of the other candidates stand a chance. At some point, either Cruz or Rubio will likely need to drop out to overcome Trump. The other candidates should do us all a favor and drop now.

The problem I’ve had with Trump is that I don’t know what I’m buying. Who would Trump put on the Supreme Court? Maybe his sister, who is a presiding federal judge in the 3rd circuit? I don’t know much about her judicial philosophy. Maybe she’d be fine. But Trump has been all over the map on so many issues, I really don’t know how he’d govern, or who he’d pick.

Not being a Trump supporter, I’m pleased to see that he may in fact be over-polling. It’s one thing to tell a pollster that you support Donald Trump, but Trump has not been building a ground operation. His campaign has been relying strictly on earned media. Trump’s media game is stellar, but you need foot soldiers on the ground to get butts to the polls or caucuses. Iowa is one state though, and its caucus system plays against candidates without a ground game more than the systems in other states. I would not count Donald Trump out of the race by far. There’s a lot of lessons to learn from Trump that the GOP is totally ignoring, but that’s another post.

I believe both Ted Cruz and Marco Rubio would put better candidates on The Supreme Court than any of the other front runners in both parties. I think Marco Rubio has more raw political talent, but I’m not sure his style is suited to the times. He’d be a great “good times” candidate, but these are not good times. As for Cruz, Charles C.W. Cooke had the linguistic kill shot on Ted Cruz for me: “midwest vacuum cleaner salesman.” He’s the obnoxious nerdy kid who kissed the teacher’s ass in class and who everyone wanted to punch after school. I might agree with him on more issues, and he may be less “establishment,” but demeanor matters to low-information voters, and Cruz’s demeanor is what I worry about. I don’t see Cruz fundamentally altering the electoral map. Rubio might have a shot.

Hillary Clinton doesn’t have any accomplishment in her life other than marrying well. I’ve said this before, but sheÂ doesn’t have enough political talent to get elected dog catcher on her own. Bill’s coattails got her to where she is.Â That’s why she nearly got schlonged by a kooky old socialist from Vermont in Iowa, and will definitely get shlonged in New Hampshire. I’m rooting for Bernie. I remember being pleased as punch when Obama started to knock of that 2nd rate hack of a candidate in 2008.Â Even after eight years of Obama, I’m not sure I was wrong to be pleased. Bernie might be a kooky old socialist, but he does not greatly offend me. He’s talking about the things people care about. He’s great on the stump, and knows how to work a crowd. If he won, I think as a President he’d be entirely ineffective — less so than even Obama. Hillary knows where bodies are buried, so she’d be a far more hazardous nominee than kooky old Bernie.

My Apologies for the Server Hiccup

I had to do an unplanned upgrade of Ubuntu on the system that runs the blog for reasons unrelated to the blog. My home server does other chores, and I had something break that required an upgrade to fix. Sadly it was a more urgent priority. I debating waiting until late tonight to do the fix, but not being able to decide, I tossed a coin six times, and sorry to say the blog lost all six times. Don’t know how that happened. Must have been an Iowa quarter.

I’ve gotten spoiled since all the other machines I work on have SSDs or RAID arrays with nice big battery backed-up caches. The blog server at this point is six years old, and still runs on spinning platters. I had forgotten how slow software mirrored platters really are. At some point it’ll be time for a new server.

The threat of OSHA is already here

Sebastian wonders if a firearms-unfriendly OSHA could be used to attack firearms rights. But it’s not a crackdown on firearms-friendly employers that worries me so much as a crackdown on ranges for lead poisoning. Gun ranges are the cradle of gun culture, and we’ve already seen that our most dangerous enemies are attacking our ability to transfer that culture to new people (via “transfer restrictions.”) Most ranges are small-business (or equivalent) operations, which are hard to regulate easily, but easy to stifle by regulation. And the real hard truth is, yes, a lot of ranges are not doing enough to mitigate lead exposure because it’s hard and expensive. The Seattle Times article is a hit piece, but it’s an effective one. And the owners of the ranges highlighted for multiple severe violations are not doing themselves or the cause any good by not addressing the issues.

This is something NSSF and NRA ought to be educating the range owners about, a strong voluntary industry initiativeÂ before the smotheringÂ hand of government regulation and enforcement descends. (Which they may have started to do. I originally saw the Seattle Times article when Tam went to work at a gun store/range, when someone asked her if her employer was aware of an educational lead abatement program.) We’ve managed to instill the 4 Rules of Firearms Safety as a core value of Gun Culture 2.0; now we need to instill something similar for where to shoot, along with how to shoot. The problem is that a lot of range owner/operators predate Gun Culture 2.0, and it may not be possible to edit this part of the culture until they age out.

Of course, in the end this is another case of “enforce the existing laws.” According to the linked article, some of the highlighted ranges could have been taken down hard for knowing and continuing egregious violations, but they were cut slack and let slide. I have to wonder if nailing a couple of the really egregious examples “pour encourager les autres” would be beneficial in the long run.