Guns – Page 1013 – Shall Not Be Questioned

New Jersey Bills

Bryan Miller is no doubt proud of his latest legislative accomplishments and is wondering how anyone could oppose him and still be a reasonable person. I suppose I will play the part of unreasonable person here, and take apart these bills. I’ll leave it to the reader to decide whether I’m reasonable:

S-2431/A-3035 increases the penalty for being caught in public with an illegal firearm to a 2nd degree crime. Until now first offenders enjoyed a presumption against incarceration. This measure removes that presumption. Offenders now face likely incarceration, fitting in a time when the state faces a rising tide of gun violence from the use of illegal handguns.

If I were to take a shotgun into New Jersey to shoot some clays, if I am not in possession of a valid FID card, that is an illegal shotgun. If I stop at a Donkin Donuts drive-through for a cup of coffee, I am now in possession of an “illegal firearm” and will go to prison in New Jersey for many years. Bryan wants you to think of gang members toting around their Gatts. New Jersey law is far far broader than that, and it’s easy for normally law abiding people to run afoul of New Jersey’s monstrously complicated and overly broad laws. My policy was, and still is, not to take any firearms into New Jersey. I make my Jersey friends come to Pennsylvania if they want to shoot. It’s too easy to get in trouble in New Jersey if you’re caught with a gun, even if you have them for sporting purposes.

S-2934/A-4620 imposes stepped fines on gun owners who fail to report lost or stolen firearms to law enforcement. On its face, this measure is the height of sense. Wouldn’t police want to know of guns floating around, potentially in the wrong hands? Plus, this law is a likely barrier to ‘straw purchasing,’ the linchpin of illegal handgun trafficking.

Straw purchasing is already both a federal and state crime. “It was stolen” is not an absolute defense to the charge. What Bryan was looking for with this is to make another law with which to charge them with because the state would be unable meet its burden that all the elements of a straw purchase had taken place. The problem with this law is that, people do get guns stolen. Originally the bill required immediate reporting, not reporting within a time period after discovery. The original penalties were also a lot more server. My problem with these Lost and Stolen reporting requirements is that they’ll disproportionately be used to jail poor gun owners in urban areas who might keep a firearm for self-protection, but aren’t that aware of the laws, and don’t have insurance issues to worry about. I’ll give Bryan one thing, this law, when considered with all of New Jersey’s other laws that are easy to unknowingly violate, doesn’t add much to the crap pile for gun owners in the Garden State.

S-2470/A-2602 requires that, with a very minor exception, purchasers of handgun ammunition show proof that they have passed our state’s rigorous firearm background check before being allowed to buy handgun ammunition. This new law is intended to prevent the sale of handgun ammo to folks who intend to use it for ill. There has been much evidence in recent years of gang members buying handgun ammo at sporting goods stores (many of which do not sell handguns). This legislation will make it more difficult for them to do so.

So gang members are going to just go “Dang, well, I can’t buy ammo anymore. I guess next time I’ll just throw the gun at the rival drug dealer who wants to kill me” Or are they going to smuggle it through illegal channels just like they currently do with guns? It’s already illegal for gang members to possess ammunition.Â What makes Bryan think the restrictions on ammunition are going to be any more effective than the restrictions on firearms are?Â This law isn’t going to deter criminals from getting the tools of their trade, but it is going to make it harder for New Jersey gun owners to buy ammunition.

This is only a start. We can expect the new Legislature, seated last week, to consider further measures to enhance public safety, including a bill to limit individuals to the purchase of no more than a single handgun in any thirty-day period (up to twelve per year), a bill to ban civilian ownership of massively destructive .50 Caliber weapons and a bill to require all new handguns purchased to include microstamping technology to aid law enforcers in tracing crime guns and solving crime. Watch this space for more news on upcoming legislation.

Whatever bills they pass will never be enough folks. Worthwhile to remember that their previous 50 caliber ban would have also banned a lot of muzzleloaders, just for you hunters out there that think they are never coming for your deer rifle. They will try if they can get away with it.

Dave Kopel Isn’t Happy Either

He writes about DOJ’s amicus brief:

If not for the massive volunteer work of persons concerned about the Second Amendment, George W. Bush would not have won the very close elections of 2000 and 2004. To state the obvious, the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was “Maybe.”

The SG brief was one that might have been expected from the administration of President John Kerry. As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.

I agree.Â I think it’s not unreasonable to demand better from this administration.

Congressmen Signing onto DC Case

It’s good for us that there were only eighteen members of Congress who were willing to put their name onto a document
in support of a complete and total prohibition on handguns and other functional firearms.Â It’s good, both, that there were so few which would go on record as supporting such, and because it makes the group small enough to list the Congress Critters here:

Representative Robert A. Brady (PA-01)
Representative John Conyers Jr. (MI-14)
Representative Danny K. Davis (IL-07)
Representative Keith Ellison (MN-05)
Representative Sam Farr (CA-17)
Representative Chaka Fattah (PA-02)
Representative Al Green (TX-09)
Representative Raul M. Grijalva (AZ-07)
Representative Michael Honda (CA-15)
Representative Zoe Lofgren (CA-16)
Representative Carolyn McCarthy (NY-04)
Representative Gwen Moore (WI-04)
Representative James P. Moran (VA-08)
Representative Eleanor Holmes Norton (DC)
Representative Bobby L. Rush (IL-01)
Representative Maxine Waters (CA-35)
Representative Lynn C. Woolsey (CA-06)
Representative Albert R. Wynn (MD-04)

Lead member on this brief is Congressman Fattah, who is from Philadelphia.Â Bob Brady is also a Philadelphia Congressman.Â Now at least we know which members of Congress can’t argue they are for “reasonable controls”.Â These Congressmen and women favor and wills stand up for outright prohibition on all functional firearm possession.

Clayton is Looking for Some Help

I’m sure most of you heard of the group of historians who published a brief favoring The District in Heller. Clayton Cramer points out some important facts about these historians, and is asking for some help in digging up information:

Now, I ordinarily wouldn’t see much point to embarrassing these people by pointing out that they were taken in by this tenured conman–after all, many professional historians were. But when you tell the Supreme Court, “Trust us! We’re experts on this subject of the Second Amendment and guns in early America,” it doesn’t say much when it turns out that they were snookered by one of the grossest, most obviously fraudulent history books that I have ever seen–and this is a topic on which they are claiming to be experts! (And a law professor, James Lindgren, and myself, who is nobody, ended up spotting and exposing the fraud.) So here’s what you can do: find any published reviews by any of the fifteen historians above of Arming America and send them to me, pronto. Here’s what I have so far:

Read the whole thing.

WWACLUD?

The Unforgiving Minute questions what the ACLU is going to do if the Supreme Court rules in favor of Heller.Â My bet is they will adjust their position on it to be one that recognizes an individual right, but nonetheless finds it outside of ACLU’s core mission to advocate for the second amendment.Â There’s probably no scenario where ACLU starts fighting for gun rights.

Contrast

Here’s an amicus brief filed on behalf of The District of Colombia from former Clinton Administration officials.

The question presented in this case is whether the Second Amendment prevents the District of Columbia from enacting public safety measures such as the handgun law at issue here that are designed to combat the violence that firearms enable a criminal to perpetrate against the Districtâ€™s citizens.Â Amici submit that the answer is no.Â Properly understood, the Second Amendment does not prohibit a legislature from enacting a law that has neither the purpose nor the effect of interfering with a Stateâ€™s operation of its militia in accordance with state and federal law.Â That was the position the United States Department of Justice maintainedÂ throughout the Twentieth Century in successfully defending federal firearms laws against Second Amendment challenge and in evaluating the constitutionality of proposed firearms legislation.

This isn’t to say I’m happy with the Bush Administration.Â Bush has not been the friend to gun owners he should have been to deserve an endorsement from the NRA, but it’s worthwhile to consider what kind of brief we’d be looking at had Gore won in 2000, or Kerry won in 2004.

Gunfight in Mexico

From StrategyPage:

When the fighting ended, ten police officers and soldiers had been wounded, but three of the drug gang were dead and ten more, some of them wounded, were in custody.Â A considerable arsenal was confiscated, including 7 automatic weapons, 16 “sniper rifles,” a dozen automatic pistols, and a grenade launcher, plus grenades and ammunition, as well as flack jackets and some radios.Â Much of the equipment appeared to have come from the U.S.Â

They were identified as operatives of the Heriberto Lazcano drug gang, commonly known as the “Gulf Cartel.”Â Among the prisoners were three Mexican-Americans, apparently all U.S. citizens, one from Texas and two from Michigan, apparently professional criminals hired to provided additional muscle.

Most of that firepower would be illegal in the United States as well, so I’m having a hard time believing we’re the source of it.Â Grenades, grenade launchers, automatic weapons, are all too heavily restricted to have been sourced here.

Is the Administration Brief Really That Bad?

This guy says it’s not.Â I’m in agreement with SayUncle’s analysis.Â I agree with Right Side of the Rainbow on this point:

For what itâ€™s worth, I think we should pay close attention to the legal framework outlined in the administrationâ€™s brief. Iâ€™d wager that the Supreme Court adopts it, or something close to it.

The last sentence there is why I had such a negative reaction to the brief.Â In my mind it opened the door to the court to rule in favor of an individual right, but based on an interpretation that intended to uphold every federal gun law, and will make attacking state laws, like Massachusetts byzantine licensing system, and New Jersey’s “maybe we’ll issue you one this year, if we feel like it.” permitting system for purchasing handguns.

My outrage in this is mellowing a bit, because perhaps I am expecting too much from The Court in Heller.Â If, in order to get a majority to rule in favor of an individual right, they need a track of reasoning that the liberals feel comfortable with, perhaps this is a way they could go without handing us an outright defeat.

If The Court did adopt the government’s position would I consider it a victory or a defeat?Â Â I think I’d have to still consider it a victory, because it will at least force the lower courts to start asking the proper questions, even if the ultimate result is not being able to use Heller to get rid of as many gun control laws as we would like.Â My big disappointment is that the government’s brief is that it merely calls for “heightened scrutiny”, which implies the government is after something less than strict scrutiny.Â What level of heightened would make the government happy?Â No doubt whatever level is necessary to uphold the vast majority of federal prohibitions.Â That should not be the concern when it comes to constitutional matters.Â The Second Amendment deserves the same standard of scrutiny as every other part of the Bill of Rights.

Quote of the Day

From Ian Argent, in the comments, speaking about The Administration’s filing on DC’s side in DC v. Heller:

They slapped gun owners in the face with a fish. Sushi-grade fish, with some tasty sauce, but still, a slap in the face with a fish…

Best metaphor of this whole sorry affair that I think we’re going to see.

NRA Statement on Solicitor General’s Brief

Can be found here:

The U.S. Government, through its Solicitor General, has filed an amicus brief in this case. We applaud the governmentâ€™s recognition that the Second Amendment protects a fundamental, individual right that is â€œcentral to the preservation of liberty.â€ The brief also correctly recognizes that the D.C. statutes ban â€œa commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice,â€ the Second Amendment applies to the District of Columbia, is not restricted to service in a militia and secures the natural right of self-defense.

However, the governmentâ€™s position is also that a â€œheightenedâ€ level of judicial scrutiny should be applied to these questions. The National Rifle Association believes that the Court should use the highest level of scrutiny in reviewing the D.C. gun ban. We further believe a complete ban on handgun ownership and self-defense in oneâ€™s own home does not pass ANY level of judicial scrutiny. Even the government agrees that â€œthe greater the scope of the prohibition and its impact on private firearm possession, the more difficult it will be to defend under the Second Amendment.â€ A complete ban is the kind of infringement that is the greatest in scope. The U.S. Court of Appeals for the D.C. Circuit correctly ruled that D.C.â€™s statutes are unconstitutional. We strongly believe the ruling should be upheld by the U.S. Supreme Court.

Read the whole thing. While the Solicitor General’s brief does agree with an individual rights point of view, and while it also does not call for DC’s handgun ban to be upheld, what it is intended to do is preserve the existing federal firearms laws, by applying a level of scrutiny that would uphold them. What angers me is that The Administration is dragging other issues into this case which are not currently at question. This case is not about the National Firearms Act or Gun Control Act of 1968. It has nothing at all to do with federal regulations on machine guns. The issue here should not be what standard of scrutiny upholds the current federal gun laws. The Second Amendment ought to receive the highest level of scrutiny as we would apply to any other part of the Bill or Rights. By calling for less than that, I still stand by my assertion that Bush has slapped us in the face, and I wish NRA would have issued a stronger statement on this one.