Category: Gun Rights

Has any of our legal brains thought about seeing if the sporting purposes language could be tossed out for vagueness? Or tossed essentially rendered meaningless? Could original public meaning originalism actually be a problem for us when it comes to interpreting such a clause? Tam’s gotten me thinking about this:

[B]ut [the Saigas] surging popularity in 3-gun competition has driven more large magazines to the market. Apparently 3-gun doesn’t qualify as a “sporting purpose”, since no clay pigeons, feathered critters, or stack-barrel Perazzis wielded by Vice Presidents are involved.

There’s already a case challenging the sporting purposes clause on Second Amendment grounds, but I’m wondering if anyone has ever challenged ATF’s authority under this clause? If we can demonstrate the gun is, indeed, used in shooting sports, can that overcome ATF’s authority to deny importation of it? Could this be thrown out on vagueness? Has it been tried? I don’t know the answer.

But it would seem an original public meaning originalist would suggest the term means what it was understood to mean in 1968, which wouldn’t include three gun competition, or any of the other defensive shooting oriented sports, since most of them came after GCA ’68. Thus ATF’s exercise of authority to keep out these kinds of firearms is within the scope of that term as understood by the public originally.

I suspect a vagueness argument would not work, and presumably ATF’s authority in this matter is fairly carte blanche. Otherwise, one could presume, that a sport could be created using 105mm howitzers, and then on what basis could ATF restrict their importation?

From the same place we heard about this in the first place, it would seem that it’s going to be similar to the 1994 Assault Weapons Ban, in that it’ll ban certain cosmetic features, rather than a specific weapon. The big question appears to be whether the availability of high capacity magazines fits in with the ban, or it just matters what it’s imported with.

Hardly surprised at the timing of this announcement from SHOT. With NRA tied up trying to stop a magazine ban and reeling from the media feeding frenzy after the Arizona tragedy, they won’t have much leftover political capital to get Congress to spank ATF. I think it’s possible for ATF to make a determination that will halt importation, without affecting firearms already in the country and possessed by individuals. There are a large number of Saiga shotguns out there. A friend of mine has one. Generally speaking, of a shotgun is declared to have no sporting purpose, it’s a destructive device by definition. It’s only through the graces of the Attorney General that we are permitted to possess shotguns in higher than .410 gauge at all. The Gun Control Act leaves that matter in the hands of unelected bureaucrats, to determine what is “sporting,” and thus what you may legally own.

UPDATE: Oh, just a reminder, Blue Steem Dems want you to know that Obama is pro-gun. If you believe that, I have some pristine wetlands in Florida I’d like to sell you.

The Truth About Guns deserves a lot of credit for breaking this story about the massive set up NPR’s On Point program was about this issue, which we mentioned here and here. I have confirmed through another blogger that other gun blogs received this request, so I reprint it here:

From: Matthew Baskin <mdbaskin@gmail.com>
To: XXXX
Sent: Fri, January 14, 2011 1:32:22 PM
Subject: NPR show On Point needing progressive gun guest

Hi Mr. Blogger,

My name is Matthew Baskin and I work for the NPR program On Point with Tom Ashbrook. I’m writing to ask if you’d be able to speak as a guest on Monday, January 17. We’re looking for a gun owner and 2nd Amendment supporter who is not opposed to the forthcoming McCarthy bill re: limiting magazine capacity. I’d be very grateful if you could put me in touch with any gun owner who is not opposed to regulation. Let me know if anyone comes to mind. Thanks very much.

Best,
Matthew Baskin

Emphasis mine. And we know they ended up, somehow, finding the AHSA shill. They also found Bob Levy who was on record at the time as supporting the ban. In short, they wanted no one on the show to speak for our side.

Given that these folks are conspiring to remove our constitutional rights, I think some guerilla tactics are from ourselves are in order. I am encouraging all my readers to e-mail their congress critters, and demand they immediately defund National Public Radio. Please forward or CC a copy of this letter to your critter to Mr. Baskin (see e-mail above), along with a short and polite note that you won’t stand idly by while your tax dollars are put to work funding one sided argument for removing your constitutional rights.

Hit them in the wallet. Don’t make it easy for them to get away with this.

We have the final language of the McCarthy Bill, as introduced in Congress. A key aspect to this proposed law, which I have not touched on before, is perhaps the most important aspect of it:

(v)(1)(A)(i) Except as provided in clause (ii), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.

The law begins with the default presumption that it is illegal to possess a “large capacity ammunition feeding device.” That you possessed the magazine prior to the ban would be an affirmative defense to the charge in court that you possessed a magazine with 11 rounds or more. You could be arrested and charged for possessing one, and be forced to prove in court that you owned it prior to the ban. The original assault weapons ban contained this:

(4) If a person charged with violating paragraph (1) asserts that paragraph (1) does not apply to such person because of paragraph (2) or (3), the Government shall have the burden of proof to show that such paragraph (1) applies to such person. The lack of a serial number as described in section 923(i) of title 18, United States Code, shall be a presumption that the large capacity ammunition feeding device is not subject to the prohibition of possession in paragraph (1)

McCarthy’s bill contains no such exemption, which puts the burden on you to prove you fall under one of these two exemptions. Carolyn McCarthy has been on NPR saying that the things bloggers have been saying about her bill aren’t true. She knows damned well they are true, and so do the anti-gun groups. The purpose of this bill is to try to get more of us thrown in federal prison.

I am not naive enough to believe that they merely don’t know how to draft laws. Dennis Henigan is not a fool or an idiot. He knows federal guns laws, and I would be very surprised if McCarthy’s staffers didn’t consult with the Brady Center on this bill. By removing the original grandfathering and protections that were in the original 1994 ban, the effect is vastly different than what we lived under with that regime. Under this law, you may really only possess 11 round or greater magazines, unless you have proof you possessed them prior, at the arbitrary discretion of the authorities. How many magazines do you have documentation for?

Remember when they call for “common ground,” and “common sense,” they want you in prison. They are at the height of their disingenuousness when they use this kind of language in the debate. If I were a lawyer, and I was your lawyer, I’d suggest the safe thing to do is throw all your magazines that hold 11 rounds or more in a river, along with your Henry Rifles, if you wanted to be completely safe from prosecution persecution in the even this bill were, God forbid, to actually pass.

Proving it was manufactured before a certain date is not enough, and the burden is on you to prove you had it prior, and possession and transfer are felonies otherwise. If you can’t prove ownership, it’ll be illegal for you to have it, for all intents and purposes, under McCarthy’s proposed law. The grandfathering provided here is actually meaningless. This bill effectively bans all magazines that hold more than 11 rounds, turning millions and millions of Americans into potential felony prosecutions. NRA has put out a letter to Capitol Hill announcing opposition to the bill, telling members to expect more from their office in the coming week. I hope among the information supplied to members is just how radical and draconian McCarthy’s bill really is. We have to fight this tooth and nail, and continue to drive these people into political extinction.

It’s been tried before, but failed twice. It’s moving now, and in the Senate, where it failed previously. Let’s hope it happens this time.

Commenter Noops took some exception to my post from yesterday about Blue Steel Democrats:

Look, they haven’t always been great, and certainly that poster is a doofus. But the Blue Steel Democrats IS a group that, for the most part, here in Oregon supports gun rights. They are an actual caucus within the Democratic Party of Oregon. Now I may not be an Oregon Democrat, but these guys have actually had positive influence on the DPO here. Zack, who used to run it, unfortunately moved to New Hampahire and it has been less active since then.

Now I usually agree with you here at snowflakes, and the ASHA thing aside, And Sotomayer, your research isn’t really that great and I’ll tell ya why. First is the fact that the DPO actually has an official caucus. They may not be as great as I like, but it’s a damn good start. Does the Democratic Party of Penn. Have an internal caucus?

Second, and way more importantly, you are applying your rose colored lense to this. I grew up in Boston, and did the same when I moved to Oregon 11 years ago. But the fact is, a lot of democrats here in the NW would be Republicans in the NE. They are far to the right of your typical Massachusetts Democrat. And your applying and east coast lens to it.

I can’t believe I’m actually defending Democrats on guns, but a couple of doofus’s aside, these are people you should be embracing, not slinging mud at. I have, in fact, gotten a few formerly antigun Dems out here to start shooting, get permits, and even join this thing.

I don’t think I’m slinging mud at them. The concerns about how they are dealing with the issue are completely legitimate. I read enough of the site to see that some of their contributors are pretty unambiguously pro-gun, which is why I was reluctant to toss them in the same heap as American Hunters and Shooters Association.

Most states have some sort of pro-gun or pro-sportsmen caucus. Many of them have members who joined to be able to tout credentials in an attempt to cover up their true record. I am willing to accept the Blue Steel Dems as fellow travelers. I noticed I was on their blogroll, so they know where to find me if they want to talk about this. But I don’t think it’s unreasonable to suggest there are some issues here, first and foremost of which is one of their former members touting her association with their group to legitimize a ban on 11 round or greater magazines. That’s a pretty big problem, and one I’d like to see them address. I certainly would if I were them.

Over at CNN. I’m guessing he wants to set the record straight after his statement about the magazine bans being constitutional. I am hoping he’s seen how quick our opponents pounce on such statements and use it against gun rights as a whole. It’s quite possible that Bob Levy was meaning to say that the Federal Courts would likely uphold magazine restrictions. I believe this is true, but not because that’s the right decision and is in line with Heller, but because many federal judges will impose their policy preferences in favor of serious analysis as to whether magazines with more than ten rounds are in “common use,” which they most decidedly are.

Let’s just take a look at numbers from 2008. ATF keeps statistics on guns manufactured.

• Glock made approximately 71,000 pistols. Nearly all their models save a few hold more than ten rounds of ammunition. I believe Glock imports are large portion of their guns as well, which are not included in these statistics.
• Sturm and Ruger made 68,272 pistols in non pocket pistol calibers. Their most popular pistol in these calibers? The SR-9. Capacity? 17 rounds.
• Smith & Wesson manufactured 261,115 pistols in non pocket calibers. Most of these are M&P line, which have capacities higher than ten.
• Sig Sauer manufactured 123,756 pistols, and most of their pistols lines also have capacities higher than ten rounds.

This represents a significant chunk of total manufacturing, which is 1.4 million units, compared with less than half a million units for revolvers, and 1.6 million units for rifles. So by any standard, the civilian population chooses guns with magazines in excess of ten rounds. These are undisputedly in “common use,” and should be protected under the Heller standard. That’s probably why high-cap mag bans don’t pass 50% among gun owning households, because they are common. I suspect that number would drop if you mentioned an 11 round magazine is high-capacity under the proposed standard.

The new California ammo law gets tossed for vagueness. It regulated “handgun ammo,” without providing a clear definition of what that was. Lets hope our opponents continue to be bad at drafting laws, such as they were here. What a great victory.

Hat Tip to Joe Huffman

A bit of a follow-up on the post about astroturfing from yesterday. Today she updated with a post that shows absolutely zero understanding for how we think of rights in this country. Digging around a bit more, she was active with a group called Blue Steel Democrats. Here’s a video where you can see her shooting for the first time a few years ago:

She’s listed as a contributor over at Blue Steel Dems, but it doesn’t look like she ever posted anything. A further examination of this group does not leave it dripping with pro-Second Amendment credibility.

I welcome gun rights activism in both parties, and I accept there are plenty of legitimate pro-gun Democrats that deserve some love from gun owners. In truth, I wish we had more Democratic gun owner organizations, because it would give us a strong base in both parties, and would leave libertarians like me feel free to leave supporting gun-rights friendly lefty candidates to people who are more closely aligned with those politicians on other issues.

But the big question in one’s support for the Second Amendment is whether you’re a gun rights activist first, and a party animal second. Blue Steel Democrats seem to be more of the latter than the former, with an awful lot of apologizing for Barack Obama, without much focus on his past, or on how we’re going to protect this right into the 21st century (hint: not by nominating anti-gun justices to the Supreme Court, as the President has done). There’s also a lot of criticism of NRA and support for AHSA here. They also defended Sonia Sotomayor, who voted with the minority to gut the Second Amendment entirely.

I don’t demand anyone toe the party line in regards to NRA, as a means to determine whether you’re really part of this movement or not, but generally speaking, if your criticism of NRA revolves around their unwillingness to back Democrats who are soft on guns, I’m going to count you outside this movement.

I’m not going to go so far as suggest Blue Steel Democrats are a false flag, since unlike AHSA, they seem to support Democrats more than gun control, but this isn’t the kind of help people who seriously care about this issue need in this fight. You have to be true to the issue first. Party comes second. By apologizing for anti-gun Democrats, you’ve become the monster you think NRA is, only from the left. Maybe that was your goal, but don’t try to convince me you really give a shit about the Second Amendment.