Caleb and Breda are hosting John Hutchinson, author of The Great New Orleans Gun Grab, on their show at 9PM tonight. I think this should be a very interesting show. So tune in to what listeners often call “the fastest hour on the Internet.”
Category: Gun Rights
Good Arguments on the Assault Weapons Issue
Chris Cox has an article in FrontPage Magazine that outlines the issue well:
Many fully-automatic firearms can fire 10 rounds in a second, which theoretically would work out to 600 rounds per minute, but they cannot be reloaded fast enough to achieve anything near that rate in reality. But we are not talking about fully-automatic firearms—we’re talking about semi-automatics, and the difference between them need not be explained here.
I think that’s a good way to frame that issue. Machine guns aren’t these scary objects that spew death and hellfire from their barrels, but that’s not what we’re talking about either. This changes the subject, without throwing machine guns under the bus. Is NRA deliberately being more careful about this? I hope so.
NRA members who own AR-15s and other so-called “assault weapons,” you are not alone. There are nearly two million AR-15s in our country, the same number of M1s, the same number of M1 Carbines, and many more Mini-14s, semi-automatic shotguns, pump-action shotguns, and all the other guns the anti-gunner want to call “assault weapon.” Countless millions of American own handguns that use magazines of over 10 rounds.
I would say that passes the Heller “common use” test pretty soundly.
Holder Approved by Judicary Committee
By a vote of 17 to 2, Eric Holder’s confirmation vote has been voted out of committee and onto the Senate floor.
The votes against him were John Cornyn of Texas, and Tom Coburn of Olkahoma. Senator Specter, who is the ranking Republican on the committee, voted yes. Cornyn did mention gun rights among his reasons for voting no. No doubt Coburn shared some concern also.
I anxiously await commentators suggesting if the NRA had just made this a “key vote” we could have turned around the eight votes needed, while they simultaneously denounce the NRA for being ineffectual.
UPDATE: One commenter suggests the use of a hold. A hold in this case isn’t going to stop the vote from happening on the floor.  A hold is basically a Senator telling the Senate Majority Leader that he does not wish a particular matter brought to the floor.  The Majority Leader can either heed the hold, or ignore it.  Typically a hold is used as an indication that the Senator would filibuster the vote.  It worked to stop the vote on Mike Sullivan because Harry Reid didn’t have much of a reason to ignore a Republican hold on their own President’s nominee.  In this case, Obama is going to be expecting Reid to deliver on his nominations, and Reid will almost certainly comply.  Given that 6 Republicans on the Judiciary Committee already voted yes to pass Holder’s confirmation onto the floor, the Republicans don’t have a filibuster.  Any threat of one will be empty, and Reid will know that, since the votes are already there for cloture.
38 Super? Really?
Apparently this is the menace we’re exporting South of the Border:
– An AK-47 and .38-caliber Super pistol with diamond-encrusted grips found after the Nov. 2 killing of the police chief of the northern state of Sonora as he walked into a hotel about two miles south of the Arizona border.
– A .38-caliber Super pistol seized a year ago when Mexican special forces captured a top Sinaloa cartel lieutenant, Alfredo Beltran Leyva, and three members of his security team in Culiacan.
– Three assault rifles recovered after patrolling federal police officers were fired upon and responded by killing four gunmen from the Beltran Leyva drug gang on July 2 at a house in Culiacan.
This is a rare caliber in the United States. Go into most gun shops, and they typically won’t have anything in this caliber. Even at a gun show, you’d probably be lucky to find more than one or two. But here’s a clue:
Drug smugglers seek out guns in America because gun laws in Mexico are more restrictive than in the United States. Mexicans must get approval for a gun purchase from the Mexican defense department and are limited to guns with a caliber no higher than the standard .38-caliber. Larger calibers are considered military weapons and are off-limits to civilians.
So, .38 Super is legal in Mexico, and tends to be a higher powered smaller diameter cartridge. Doesn’t it stand to reason that they might be more common there, while they are relatively uncommon here? Could it be possible that .38 caliber firearms turning up in Mexico did not originate in the United States? I have no doubt that there are straw purchasers working for people smuggling guns to Mexico, but the only way to deal with that is to make it illegal for anyone to buy a gun, and that’s not going to happen. You know how else we could deal with this? Securing the border.
Don’t Confirm Holder
Steven Halbrook has an excellent op-ed in Human Events outlining the reasons the Senate should not confirm Eric Holder.
More Media Heat for Kirsten Gillibrand
From the Albany Times-Union. There is definitely a concerted effort among the New York State media establishment to shame Gillibrand out of her support for gun rights. This puts her in a difficult position. I would encourage everyone in New York, especially Republicans, to send their new Senator a note of support, expressing their appreciation for her support of the Second Amendment. The only thing that’s going to help her stand up to the media onslaught is support from her constituents.
I think that Senator Gillibrand will find that more New Yorkers are closer to Tom King’s view on her than they are to possible GOP challenger Peter King’s.
Barrasso is a No
Wyoming Senator John Barrasso is saying he’ll vote no on Holder.  The reason?
As Wyoming’s United States Senator, I take very seriously the responsibility to protect and defend our right to keep and bear arms. President Obama has every right to nominate Eric Holder to be Attorney General. I have the duty to closely review the nominee’s qualifications and philosophy on issues that are important to all Americans.
Thank you Senator.
Mens Rea and the National Firearms Act
I think it’s important for gun owners to understand the National Firearms Act, and how it is applied as law by the federal courts. Most of us here possess semi-automatic firearms, which can occasionally experience a failure mode that causes multiple shots to be fired with a single action of the trigger. I think it’s important people know what their rights are, and how the law is applied, in case they ever find themselves in this situation. This is from a post from Kurt Hofman yesterday:
[…] you can still be sent to prison for having a malfunctioning semi-auto, because “[i]f you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.” In other words, a malfunction is no excuse, according to the government.
Kurt is correct that, unfortunately, the National Firearms Act makes no provision for a firearm that malfunctions. If it fires more than one shot with a single function of the trigger, it’s a machine gun. You can thank Congress for poor drafting of a law that never should pass constitutional muster in the first place. But it’s not really correct to suggest that you will go to jail if your AR doubles on you at the range in earshot of the Five-O.
The reason that’s the case is thanks to a case known as Staples v. United States, which is a case that’s remarkably similar to the Olofson case. In Staples, The Court ruled that Congress did not eliminate the Mens Rea requirement, and that it had to be considered as applied to gun laws. Mens Rea, translated from Latin, means ‘guilty mind’, or that the criminal had some knowledge of wrongdoing that constituted a crime. From Staples:
We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” Anderson, supra, at 1254. As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” 342 U. S., at 263. We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).
It’s important to note, however, that Staples demands that the government prove that the defendant understand the characteristics of the firearm they possess as an element of proving the crime. It does not demand that they prove the defendent knew it was unlawful to possess an unregistered machine gun.
We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.
So you are not automatically guilty of possessing or transferring a machine gun if your AR doubles up on you at the range one day, provided you did not understand yourself to be in possession of a machine gun. If such a thing happens to you, however, it would behoove you to fix it as soon as humanly possible, and not fire the weapon until it is fixed. If you are caught and prosecuted with the firearm in the intervening time, the prosecution will have to prove you believed you were in possession of a machine gun, rather than a malfunctioning semi-auto. If your firearm is indeed merely malfunctioning, and there’s no evidence of any attempt at conversation, which would establish your understanding of the firearm as an automatic, the government will likely fail to meet its burden.
In the transcripts for the Olofson case, you can see the government went through effort to established Mens Rea. Here we have the prosecutor in the direct examination of Robert Kiernicki, the kid Olofson was accused of transferring the firearm to:
Q. Okay. And I’m sorry, now what did he tell you about the selector switch? First of all, did he indicate to you whether he knew that that was an automatic function?
A. Yeah, he told me that the three-round burst wouldn’t work and that it would jam up.
Q. Did you know what he meant by “three-round burst”?
A. Yeah.
Q. What did you take him to mean?
A. Three rounds come out of it when you would pull the trigger.
Q. When you pull the trigger once?
A. Yeah.
Q. And when he was telling you this, did he tell you that he had fired it automatically in that three-round burst position and that the gun had jammed on him?
A. Yes.
Kiernicki’s testimony and sworn affidavits were as big a part of the government’s case as the tests the ATF did on the firearm. In fact, without the Kiernicki’s testimony, the government would have had a much weaker case, and would have had to rely on the M16 trigger group as evidence of a guilty mind. I think it’s quite likely a talented defense attorney could have gotten an acquittal.
It’s something to keep in mind, because the hazard of possessing a malfunctioning AR is real. If you go show off to your buddies “Hey look, I can make this three round burst!” even if it’s a worn part causing a hammer follow, you just established a guilty mind. The ATF is not lenient or forgiving in its enforcement of these laws, and it has a long history of pushing court rulings to their limits, or ignoring them entirely, in attempts to get convictions. But, in general, if your AR malfunctions and doubles, you shouldn’t be criminally liable for it if you understand that you have a malfunctioning legal semi-auto, and act accordingly. If you do end up in legal trouble, say nothing until you speak with an attorney. In addition, we should strive to change or repeal the laws that create this type of hazard for ordinary gun owners.
York Tables Lost & Stolen
The City of York, Pennsylvania has tabled its “Lost & Stolen” bill because the city soliticer’s opinion is that it violates state law.  Apparently some politicians are pissed because they didn’t pass it anyway. Rule of law, bah! Who needs that?
Montana Gun Bill Being Debated
Montana may be poised to adopt Alaska style carry with a bill that will:
- Allow people to carry a concealed weapon without a permit;
- Greatly strengthen self-defense protections in the state;
- Allow people to display their gun to deter an attack;
- Allow people to use a gun whenever at risk of physical harm;
- And, in shooting incidents in which the person who fired the gun claimed self defense, require the state to prove that it was not.
I don’t know the specifics of the bill, and some of the points here don’t make a lot of sense. Like number five. Isn’t that how proven guilty beyond a reasonable doubt already works? I would have concerns about 3 and 4. Define physical harm? What constitutes an attack? If a kid throws a snowball at me, am I justified in shooting him? If another driver shouts out his windows, “I’m goign to kick your ass,” is that a lethal force scenario? I’d have to see specifics to really understand, because I doubt the journalists really do. But I definitely whole heartedly support points 1 and 2. There are circumstances I would support 3 and 4 as well, but the law probaby already accounts for force disparity. Nontheless, I don’t think a person should have to risk concussion making their head a punching bag for some drunken lout before defending themselves.