Challenge to PA Mental Health Prohibition

A lawsuit has been filed in federal court challenging Pennsylvania’s statute that strips anyone committed under Section 302 of Pennsylvania’s Mental Health Procedures Act (MHPA) from possessing a firearm.

In this media environment, where insisting on due process to strip fundamental rights gets spun as, “You want crazy people have guns!,” it’s prudent to cover a bit of background.

Pennsylvania’s Mental Health Procedures Act has three types of commitments. The first is the typical involuntary commitment, under Section 303 and 304 of the MHPA. There is some due process involved to commit someone under Section 303 and more under 304. For 303, for instance, the medical professionals have to petition the Court of Common Pleas and make their case before a judge. There is a right to representation by counsel. Section 303 and 304 commitments are not challenged in this case.

But Pennsylvania also has an observational commitment as well, under Section 302. In the vernacular, you will hear this referred to as a “302 Commitment.” For Section 302 commitments there is no due process involved whatsoever. All you need to earn a 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital, and for a physician to sign off. Often times people are not even aware they’ve been committed.

The parties here are both John Does. Both, other than their 302 history, are eligible to possess firearms under federal and state law.

John Doe I was bullied at school, lost his girlfriend, got depressed, and was taken to the hospital at 16 by his concerned mother, held for a few hours and quickly released. He did not know he was a prohibited person until later as an adult he tried to purchase a firearm and was denied. The hospital had held him under Section 302.

John Doe II was taken to the hospital by a friend because he was intoxicated and belligerent. He was kept under Section 302 involuntarily until he sobered up and was released. He has since gone through alcohol rehabilitation and now lives a clean life. John Doe II was also not aware he had actually been held under Section 302 until he tried to purchase a firearm.

The plaintiffs are represented by Jonathan Goldstein of McNelly and Goldstein. Jonathan is an experienced attorney in firearms law.

As mentioned in the case, Pennsylvania law does not require that the examining physician have any specific mental health training, only that they are licensed to practice medicine in Pennsylvania. There is no due process whatsoever, as the suit notes:

An individual is not provided the most basic due process protections before being involuntarily committed under the Temporary Emergency Commitment Statute. He receives no pre-deprivation notice of the potential consequences of the hearing; he receives no right to review by a neutral arbiter he receives no opportunity to make an oral presentation; he receives no means of presenting evidence; he receives no opportunity to cross-examine witnesses and respond to evidence; he receives no right to counsel; and he receives no pre-commitment review by a court or a decision based upon a written record.

All it takes is a ride to the hospital and a doctor to sign off. That’s it.

Under the Fourteenth Amendment, government must provide adequate due process procedures before divesting citizens of fundamental rights. Logan v. Zimmerman Brush Co, 455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480, 495-96 (1980); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000).

Seems like it should be a solid case, but these are the federal courts we’re dealing with. The same federal courts have largely said that the Second Amendment is a second class right, not worthy of the same protections, often not even close to the same protections, as other rights. But I think there’s some hope here.

If we look at the last en-banc decision on guns out of the 3rd Circuit, the Binderup case, it was heard before Judges McKee (Clinton), Smith (G.W.), Ambro (Clinton), Fischer (G.W.), Chagares (G.W.), Jordan (G.W.), Hardiman (G.W.), Greenway (Obama), Vanaskie (Obama), and Schwartz (Obama), Fuentes (Clinton).

Fischer (G.W.) is up for replacement. But so are Julio Fuentes’ (Clinton) and Marjorie Rendell’s (Clinton) seats. Binderup did pretty well on a more heavily Dem appointed panel. If Trump can replace the three vacancies with solid judges we may have a decent chance with this case.

Fact Checkers: ARS Full of It

When even the biased Fact Checkers say you’re full of crap, you’re full of crap. It looks like Gifford’s ARS backtracked with a “Well, it could still make a gun ‘silent’ in really loud places.”

In the meantime, although the popular name of this accessory is a silencer, foes of the law such as Gillibrand should not use misleading terms such as “quiet” to describe the sound made by a high-powered weapon with a suppressor attached. We wavered between Two and Three Pinocchios, but finally tipped to Three. There is little that’s quiet about a firearm with a silencer, unless one also thinks a jackhammer is quiet.

The facts are on our side. There’s no reason for the GOP not to pass this sucker.

Administrative Power

I’m often conflicted, because while I fundamentally believe popular sovereignty, I don’t view the concept as particularly good at preserving individual rights. So we have a republican government with lots of checks on its power. At least in theory. In practice it’s never really lived up to the ideal, but it probably worked better than many alternatives. But one thing I’ve always loathed is the Administrative State. Some people are now calling it the “Deep State” while others argue such a concept is a figment of right-wing nut jobs imaginations. The Administrative State is very real, and this strikes me as an excellent critique of it:

My scholarship (past and forthcoming) argues that administrative power undermines equal voting rights by shifting much lawmaking power out of Congress into the hands of unelected administrators. My work shows, moreover, that this shift occurred when the knowledge class regretted the boisterous sort of politics that came with equal voting rights. Woodrow Wilson candidly explained that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads”—especially when the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” One could go on at length with such quotes, and certainly administrative power has been dominated by whites of a certain class, but the point is not narrowly about racism. Instead, it is about how a class that expected deference to its knowledge was disappointed with the results of equal suffrage in a diverse society. It therefore welcomed a transfer of lawmaking power out of the elected legislature and into the hands of the right sort of people.

The argument, in other words, is not against an elite, but against the administrative dilution of representative government and equal voting rights. There will always be elites, and this is part of the valuable differentiation that can occur within a free society. Rather than oppose such differentiation, my scholarship suggests that all Americans, even elites, should confine themselves to working through the Constitution’s representative framework of government.

Hat tip Instapundit.

Saccone to take on Casey

According to CBS Pittsburgh. Republicans have not been doing well in state-wide races, generally, and I question whether Rep. Saccone has enough state-wide name recognition. But I can’t think of anyone better. The PA GOP does a pretty awful job of developing talent and moving them up the ladder. Of the state-wide state offices that are typically stepping stones to Senator or Governor, the Dems now control all of them. Casey’s advantage going against Santorum was name recognition, in that his father, Bob Casey, was a Pennsylvania Governor. Saccone has an uphill climb, so he is going to have to be a stellar candidate. I’d suggest if he can’t learn to channel some of that good ol’ populism that was Trump’s schtick, he’s probably doomed. One advantage Saccone has is he hasn’t been in office all that long. It’s a lot harder to pull off populist everyman when you’ve held office as long as some voters have been alive.

There’s Probably a Window for Passing National Reciprocity

After Obama was elected, you saw a lot of hot air from the right about secession movements. Now with Trump, there’s talk of Calexit and other secessionist movements that are still mostly hot air, but are perhaps a little more serious. I think it’s likely the talk will get a little more serious as the years go on.

I think it’s highly unlikely the United States will crack up, but the world wide trend is away from technocratic edifices like the EU and our own federal system and toward greater decentralization and autonomy. It’s not just here. It’s happening everywhere.

What would be the problem with California independence? The big problem is that California has no means to defend itself unless robot armies start replacing foot soldiers. Would the California Republic get to keep the nukes it has? Would it get to keep the San Diego Naval Base? What about the ships? What about California’s share of the National Debt? You can see the issues.

If you were to take a group of people who didn’t really want to fight a war over these things, and think about what a negotiated partition would look like, it would look an awful lot like the kind of weak federalism enshrined in our Constitution before the reconstruction amendments. That’s probably where we’re going if trends continue. Secession would turn into a sort of disarmament talks… namely disarming the federal government as an instrument of national policy in the name of getting along and preserving a national market and common defense.

I don’t think the 14th Amendment will suddenly get ignored, or end up repealed. People will likely leave in place the functions they are accustomed to: enforcement of civil rights, etc. What does that mean for gun rights? Gun rights being vigorously enforced by the Courts, Congress and Executive branch as part of our understanding of civil rights is not something we’re accustomed to, because it’s largely not happened. The blue states will fight federal action to protect gun rights tooth and nail. If it doesn’t start happening soon, at some point that’s going to become a negotiating point between the Bluexit folks and the Redexit folks, and we’re probably not getting national gun rights policy after that. States like California and New York will remain awful. So in my 30,000 view of where the overall trends are going, we have a window, and that window is going to start closing probably within a decade.


So far The Experts seem to have done about as good a job predicting the snowfall accumulation from this storm as they did the election. I didn’t go into the office today because I expected when I woke up, it would be snowpocalypse. Of course, there’s still more storm coming, but it’s looking like a dud here so far.

Not that I’m going to complain. I wasn’t look forward to shoveling 2 feet of the wet, heavy stuff off my driveway this afternoon. In other news, I absolutely hate The Weather Channel’s policy of naming winter storms. I hate it enough I’ve been actively boycotting them for their sin against meteorology.

NRA Part of Russia Conspiracy Now

I’ve been waiting for this shoe to drop. Russia has a RKBA movement that NRA has been involved with for several years. I met and spoke briefly with a representative from their organization at the NRA convention in St. Louis before Trump was even a thing. Somewhere I have her business card but I can’t seem to find it. Am I part of the conspiracy too now?

Now, this Russian RKBA group is not an opposition group. That’s not allowed in Russia. This group has the blessing of the Kremlin. This is not a new thing. NRA has been working with this group for years. NRA has always been willing to work with foreign RKBA movements and to help promote the shooting sports in other countries.

The common interests do go farther than that. Russia is an opponent of the UN Arms Trade Treaty (ATT), and when it comes to ATT, allies are scarce. It’s basically the Russians and Chinese who don’t want it. The sanctions placed on Russia are also indirectly an RKBA issue, since a lot of our cheap surplus comes from Russia. Now, I am fine with the sanctions as long as their true purpose is to act as a legitimate instrument of US foreign policy and not just a back handed way to screw American gun owners. I never got the impression that Obama’s sanctions were targeting us directly. I would not like to see NRA take a position on the sanctions, even if they interfere with imports of firearms and ammunition. To me that’s a foreign policy issue and a legitimate prerogative of the President and Congress. In other words, not a gun issue, even if we’re indirectly affected.

There’s a lot of smoke here, but I’m not sure there’s fire. I might feel differently if I haven’t been seeing Russian nationals at NRA long before Trump came along, and before Putin started getting frisky in Ukraine and the Middle East.

Conspiracy Theories

A few years ago, if you had said “The CIA is using my TV to spy on me,” you probably would have been sent to the loony bin for observation. But thanks to Wikileaks, we know it’s true! The Internet loves a good conspiracy theory, so I’ll throw one out there:

Also because of Wikileaks, we now know the intelligence community has the ability to hack systems and leave a Russian or Chinese “signature” on an attack. I’m thinking this probably just involves leaving some Russian or Chinese language root kit laying around, but maybe it’s more sophisticated than that. I haven’t read the documents first hand yet.

It was always in Barack Obama’s personal best interests for Hillary Clinton to not be the next President of the United States. Had Hillary won, Obama would have been forced to take a back seat, and the Clintons would then be firmly at the helm of the party. If Obama was to retain control of the Democratic Party, Hillary had to lose. But Obama couldn’t be seen to be deliberately sabotaging her campaign. So what’s the conspiracy theory? The whole “Russians! Under My Bed!” scare is a cover. Obama used Weeping Angel to sabotage Hillary’s campaign and had the intel community leave evidence to ensure it would get blamed on the Russians. Now his plants in the intel community are using the cover to sabotage Trump, and hopefully draw attention away from the hit on Hillary. Crazy? Absolutely! But so was the idea that the CIA would use people’s TVs to spy on them a decade ago.

I’m just messing around here, but at this point it wouldn’t surprise me. How long before people are putting on tin foil hats because it really does keep the CIA from reading your thoughts?

UPDATE: Along the same lines, this is the beginning of the end for encryption as we currently know it.

Another Topic, Discuss: Concealed Carry Compromises

A few readers commented on the new Concealed Carry graphic I’m using. I try to use graphics because apparently it makes your site more appealing, even though most sites that use them either have expensive stock photo accounts, or flagrantly violate other people’s copyrights. I don’t like to do either. No copyright issue with this one, because it’s me, taken about 14 years ago not long after I purchased a Glock 19 and a halfway decent holster. I was also an early adopter of Smart Phones, and at the time used a Palm Treo 270.

I’ve done a lot of dumb things over the years carry wise. The first time I ever carried in public, sometime around August of 2002, I was carrying a Bersa Thunder 380 in an Uncle Mike’s sausage sack. That’s what I had. I got the Glock I carry today a few months later, and then started experimenting with better holsters.

But one thing I did, really up until the iPhone 6 behemoth, is carry my cell phone at 2:00 and pistol at 4:00 strong side. Since the iPhone 6, I found a pair of pants and a jacket that has a cell phone pocket, and I use that. The iPhone 6 is too large to comfortably wear on a belt clip.

Concealed Carry

My placement of the cell phone relative to the firearm would horrify a lot of instructors, but I’m a firm believer that everything with carry is a compromise. If I had to follow best carry practices all the time, I wouldn’t bother with it, and I’m pretty sure most other people would not either. I’ll make tradeoffs provided those tradeoffs aren’t dangerous.

I’m willing to be convinced carrying a cell phone on a belt clip strong side near a gun is a bad idea, especially now that the phones are huge and I have other options. What does the Internets collectively think? Discuss.