Looks like Kel-Tec is making a semi-auto pistol in .22 Magnum. Of course, this fairly common and 50 year old rimfire caliber isn’t generally thought of as an armor piercing, but it’s performance is very close to the 5.7mm round fired by the much maligned FN Five-Seven. Will the gun control crowd advocate banning this gun too?
Author: Sebastian
Ruling on Tennessee Restaurant Carry
This ruling is certainly a setback, but it doesn’t yet change the law for most of the state, as far as I can tell. SayUncle is checking with his peeps too [UPDATE: Looks like it only applies to Davidson County]. Hopefully like National Park Carry, this will be a short lived victory for the other side, one way or another.
So Begins Thanksgiving Vacation
Leaving work shortly, and will be on vacation for the rest of next week. Blogging will continue, but maybe not on the actual holiday. It’ll actually be a bit of a working vacation, since I have crap to do here that needs to be done by the end of the year. I’m mostly taking off because I have a lot of use-it-or-lose-it vacation left, and I might as well use it as an excuse to work (a lot less) from home.
Gun Control Groups Misleading on Ft. Hood
Surprise, they are claiming their terror watch list legislation would have made a difference, but it wouldn’t have. There is no rule, law, or regulation that is going to stop all tragedy, or even most tragedy. Sometimes bad things just happen. If anything, Ft. Hood is an example of the folly of counting on the government to protect us.
Holder on Gun Policy
The Law Enforcement Alliance of America is reporting on Holder’s testimony before the Judiciary Committee two days ago:
Transcribing General Holder:Â “The position of the Administration is that there should be a basis for law enforcement to share information about gun purchases.” “… [It’s not] inconsistent to allow law enforcement agencies to share that kind of information, for that information to be retained and then to be shared by law enforcement.” “It seems incongruous to me that we would bar certain people from flying on airplanes because they are on the terrorist watch list and yet we would still allow them to posses weapons.”
So the Administration is on record as being in favor of denying Americans constitutional rights based on their presence on a secret government list, and quite probably based only on their sharing a name with someone who is on the list. Will Congress act here? Probably not. But I also wonder what kind of information sharing Holder thinks is allowed by law. The law is pretty clear that if someone passes the background check, the identifying information in the record is destroyed.
Duty to Retreat in Common Law
With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.
But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:
Burglary, or nocturnal housebreaking, […] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger […] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]
Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:
In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.
Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.
Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him […] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.
Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.
What is Meant by “Good Enough”
I am believer in the old saying that perfect is the enemy of good, and there’s been no better example of that than George W. Bush’s presidency when it came to Second Amendment issues. It would be hard to argue the guy was our best buddy, after failing for years to deal with the National Park issue, then incompetently rushing it through toward the end, and after having his solicitor general argue against Mr. Heller’s position in front of the Supreme Court. But I’ve said that putting Alito and Roberts on the court was the best thing he did for us, and at the end of the day, saved the day. Here’s more evidence from the 7th Circuit’s decision on Lautenberg:
The Seventh Circuit opinion, which now has shifted the burden of proof to the Justice Department through an “intermediate scrutiny” standard, was written by Diane Sykes, a George W. Bush appointee, and joined by William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.
Two George W. Bush appointees comprised that three judge panel making up the 3-0 decision to reverse and remand. Even though they did not find Lautenberg unconstitutional facially, they at least told the U.S. Attorney he had to take the Second Amendment seriously. And told the lower courts they had to as well. Many will say George W. Bush never deserved his NRA endorsement, and there were certainly times I agree with that, but we’ll probably be enjoying the benefits of the people he put on the bench for some time.
A Challenge From the Peanut Gallery
Got a person in the comments who is an opponent of concealed carry, and he’s made a claim I’m wondering if it can be disproved. Here’s the claim:
And it remains true that no private citizen without law enforcement background has ever used a legally concealed weapon to stop a mass murder involving more than two deaths in progress.
Can anyone find an instance of this happening? I know there have been citizens with guns that have stopped mass murders, but we’re talking about the very narrow, specific incident of a individual citizen, with no law enforcement background, carrying a legally concealed weapon, stopping a mass killer. Note that guys like Dan McKown don’t count, because he didn’t stop the killer. Mark Wilson doesn’t count either, because he was in the home when he saw the incident unfolding, and was killed before he could stop the shooter. Neither does Jeannie Assam because she had a law enforcement background.
Daily News on Castle Doctrine
The hearings are today. My friend Dan will be testifying before the House Judiciary Committee in favor of the bill on behalf of PAFOA. Stu Bykofsky of the Daily News reports on the “controversy.” I put that in quotes because I’m actually surprised there hasn’t been more of a media reaction to it. Really, this bill just codifies that which is already practice in most areas of the state, so it shouldn’t be controversial. The problems it’s meant to address are:
- There is technically, in Pennsylvania law, a duty to retreat within the home. There’s no duty to retreat from the home, but technically speaking if someone breaks into your home, you have to retreat, and then only after the invader follows and attacks you can you resort to deadly force. Practically speaking, no jury in Pennsylvania is going to convict a homeowner for shooting a home invader, so this isn’t really a change from practice even if it’s a technical change.
- Pennsylvania law currently has no castle doctrine for vehicles. If someone opens the door and gets in my car, I can’t threaten deadly force or use deadly force until he presents an active threat to me. this bill changes the presumption so that anyone attempting to enter your vehicle uninvited can be considered a deadly threat. Again, prosecution is unlikely because juries tend to be forgiving of law abiding people defending themselves, but it’s the law.
- Pennsylvania currently does not provide civil immunity for people defending themselves, and it’s not uncommon for attackers to sue their victims for defending themselves. This should put a stop to that, and this alone, in my opinion, is reason enough to support the bill.
- We also have a duty to retreat and a duty to surrender in the street. Technically speaking, you are required to flee an attacker if you can do so safely. Doing so safely ends up being in the eyes of jury members who weren’t there, and who will second guess your every move. If you use lethal force on a mugger holding a knife to you and demanding your wallet, you better hope there wasn’t some avenue of retreat you didn’t consider. This will eliminate that type of second guessing. If you’re in a place you have a legal right to be, and are threatened with grave bodily injury or death, you can defend yourself without having to worry about retreat.
Bryan Miller’s hysterics from the Daily News article fail to appreciate what Pennsylvania law and practices already are.
It’s an unwelcome expansion of the Castle Doctrine, he says, “to everywhere – to churches, schools, malls, everywhere, so that someone can claim they were threatened and use lethal force against the person who they claim [threatened them.]
“Our name for it is Judge, Jury and Executioner,” he says. Other critics have called it “Shoot now, ask questions later.”
The right of self-protection already exists, Miller says, but he sees it as limited.
“Walking on a street or going through a shopping mall,” he says, “we are protected by law and by law-enforcement officers,” and that’s preferable to giving lethal force to individuals.
Except that any claim of self-defense in a Court of Law, or before investigators involves a “claim” that they were “threatened.” Â It’s up to prosecutors, and ultimately, if it goes to trial, a jury of your peers, to determine whether or not you acted reasonably and within the law. This proposed Castle Doctrine law does nothing to change the calculus on what level of threat is necessary before deadly force can be resorted to. That standard is still the threat of grave bodily injury or harm, even under this proposal. Bryan Miller seems to be acting as if Pennsylvania has no self-defense justification at all, and that it’s only available to law enforcement. Truth is law enforcement operates under the same self-defense statutes as everyone else.
Conviction Vacated on Lautenberg
Very good news for the Second Amendment. The problem would seem to be the government made a really bad case for the constitutionality of Lautenberg, basically taking the line of “Of course, it’s constitutional!” which the Circuit Court in this case didn’t seem to appreciate. The statute is not ruled unconstitutional, but the Circuit Court basically said that government actually needs to make an argument that doesn’t rely on a presumption of constitutionality. They are holding the government to a higher standard, which is appropriate when constitutional rights are at issue.