Guns – Page 647 – Shall Not Be Questioned

Machine Gun Fun

Met up with Traction Control tonight over at Ready, Aim Fire in Bristol. He rented an MP-5 submachine gun. Got to shoot a magazine through it. The house MP-5 was in some dire need of cleaning and some fresh magazine springs, but any time I get to shoot a submachine gun I think “Man, we really need to get rid of that Hughes thing.” Full auto is a lot of fun even when it’s not running as well as it could, and sometimes submachine guns can beÂ finicky.

Two notables tonight are that I got to shoot my Webley Mark IV for the first time, and I enjoyed it. Much less recoil than I would have thought, but that’s probably because it’s a rather heavy pistol firing a relatively anemic round. That crossbar safety has to go though. It’s rough to switch, and a general pain in the ass. It gets in the way of the enjoyment of the pistol. Eventually I think I need to find a Webley that hasn’t been mutilated for the sake of being legally importable.

I also got to shoot my Glock for the first time in a length of time I’mÂ embarrassedÂ to admit. I compete with air guns and .22s these days, so not much trigger time on the Glock. The problem is, my club has a lot of stupid restrictions on how many rounds you can put in your magazine, and drawing from a holster, so I can’t really practice self-defense shooting there. I don’t end up practicing self-defense shooting as much as I really need to for carrying a pistol around in public. That’s not to say I shot badly. Getting trigger time, any trigger time, keeps your skills from totally going to s**t, but I was shooting better practical pistol two years ago than I am now.

Drawing from holster, using my iPhone shot timer, I was getting somewhere between 1.5 seconds and 2.5 seconds between buzzer and aimed shot on target. At least I think. It’s hard to tell on a busy range which shot registered was yours, so it comes down to “I know I’m not that fast, but I’m pretty sure I’m not that slow.” Overall, out of the holster I’m in an area of about the size of a DVD container at 25 feet. That’s decent, but I did pull one shot pretty far off, which I’m a bit appalled by. I’m also unhappy that on about a 1/4 of my draws I had a grip that caused the slide to scrape against the web of my hand. No bloodshed from a slide cut, but not comfortable either. Whatever mojo Todd JarrettÂ imparted with his instruction has definitely departed due to lack of practice. That seems like it was a long time ago. Hopefully I’ll get out to a few practice shoots this season and top my skills back up.

Who knows. Maybe one day my club will come into the gun culture of the 21st century and we’ll have some practical shooting, or steel plate shooting where I can get some more practice in under time pressure and from a ready stance or from the holster.

There They Go Again with the “Terror Gap”

I think this deceased equine by now is pretty thorough flogged, so I wasn’t going to respond to the Brady’s latest here on this blog, but since Opposing Views is a new place I figured I’d respond there. I thought it’d be a good idea to get into the debate there, despite there already being a good pro-gun presence, because Opposing Views has the benefit of being rated by Google as a news source instead of a blog. The gun folks over at Examiner.com also share that advantage. Blogs are good and useful, but if you’re a traditional blog, you’ll never be anything more than that to Google, but if you can get your message out onto something Google News can pick up, that’s something different. It’s important for our message to appear there too.

Thinking Seriously About the Issue

TheÂ ChattanoogaÂ Times Free Press can’t understand the legal difference between a State Capitol and other public places [Link removed. The Chattanooga Times Free Press is owned by the unethical WEHCO Media, that is suing bloggers. They will get no link love from here].

[Quote removed about how this unethical newspaper company thinks it’s understandable for legislators to disallow guns in the Capitol, considering that gun violence can strike anywhere, thus making the case for restricting guns, well, anywhere.]

First off, someone deranged isn’t going to be stopped by a law or policy. I don’t know much about how Tennessee’s State Capitol works, but ours is similarly off limits because it’s also a courthouse, containing the Pennsylvania Supreme Court. But a courthouse or state capitol is a vastly different type of public place than restaurants, rest stops, parks, or other places where we’ve been demanding our right to carry be respected.

It’s not just different because politicians are there, but is really a distinct kind of public place. The Supreme Court ruling in Heller suggests that state capitols and courthouses are the kinds of government buildings where it’s constitutional to restrict possession of firearms, at least temporarily. Whether you think that was right or wrong isn’t really what I mean to discuss here. The ruling says what it does, and it’s now law, so let’s speak for a minute about which “sensitive places” and “government buildings” might be covered, and why.

A courthouse or state capitol would, under Heller, likely be the kind of government building where firearms could be temporarily restricted. But given that the Second Amendment protects one’s right to self-defense, under what circumstances can this be the case? I think three aspects can make the case, substitution, screening, and storage. Let’s call them the three S’s. Let me explain what they mean.

Substitution. Is there an ample law enforcement presence in the building? In most state capitols and courthouses, the answer to this is clearly yes. In Pennsylvania, the Capitol is staffed by the Capitol Police, and courthouses in PA are staffed by the county Sheriff’s office. In both their presence is ubiquitous. There’s very few circumstances where they aren’t going to more ably to deal with a situation than an individual would be. If a gunfight breaks out in the capitol rotunda, I’m far more likely to leave it to the guys with the submachine guns than try my hand at dealing with the matter. There’s a reasonable substitution for your own side arm with the ubiquitous law enforcement presence.
Is the building screened? In other words, does everyone go through a security checkpoint? This isn’t perfect, but it’s a pretty good protection against someone disregarding the rules with intent to shoot the place up. In most courthouses I’ve been in, and in state capitols, there’s a security checkpoint with metal detectors and x-rays.
Storage is the third aspect. In Pennsylvania, the Capitol Police provide for checking your firearm as is required by state law. This means your Second Amendment rights aren’t infringed upon on your way to and from the building.

But how many public places even come close to passing the “Three S” test? Very few. If you believe in the right to self-defense, and believe in the Second Amendment, there might be reasons, as was mentioned in Heller, that you can’t carry a gun just anywhere, but there needs to be a higher level of concern than just “some random nut” as theÂ ChattanoogaÂ Times implies. The random nut is always going to have a gun. If the government is going to disarm citizens, it should be for a damned good reason, and in an environment where the government can provide a reasonable substitute for personal protection. The old adage “I carry a gun because a cop is too heavy” applies. It’s not surprising that media outlets don’t want to go into this issue in that level of detail, but if it’s really a right, it needs to be treated like one. You can’t just declare, “It’s a right, but what about whack jobs?” Â We don’t think of other rights that way, do we? “There’s a right to free press, but what about libel?”

Jerry Brown for Governor?

Don Kates says he’s a good choice for California, and tells us some details we wouldn’t have known otherwise:

In contrast, I do know Jerry Brown. We went to law school together though we were not big buddies. And when I contacted him about supporting the pro-2d Am position in the McDonald case, he filed an influential pro-2d Am brief w/ the S Ct. I know that he personally made the decision to do this, overruling his staff; and he wrote the brief himself. (He is an able lawyer.) When he was assailed by anti-gun forces, his response was that the 2d am is a “civil rights issue.”

This is not to say that Brown is “pro-gun.” He just thinks â€“ as does everyone rational and informed on the issue â€“ that gun control does not help reduce crime; indeed, that it has nothing to do w/ crime.

I’d sure like more than lukewarm support, but it’s not like Ahhnold has worked out too well for California Gun Owners, has he?

Pennsylvania Dems Go Far Left on Guns

It’s not just a little gun control the Democrats seeking the gubernatorial bid are going for – they are all in. It’s a sad thing to say – the most moderate only wants to ban your EBRs. And, to some degree, Jack Wagner really only said he supported it previously. I haven’t seen him release an action plan to take them. And, yes, that puts him far above the other options for Democratic gun owners have on their primary ballot.

Take Dan Onorato. Apparently, there was early speculation that he was pretty pro-gun. He squashed that rumor at his campaign launch saying that any speculation about his support of the Second Amendment was “a mischaracterization.” Turns out that may be the understatement of the year.

Yesterday, he released his “plan for safe communities.” In it, we find a plan to end preemption (say goodbye to carry in Philly!), a proposal for statewide lost-and-stolen, and a plan to challenge Heller/McDonald.

Say what?

Yup. Dan Onoranto wants to force all gun owners who have minors in the home to lock their guns. Apparently he missed that key part in Heller:

In sum, we hold that the Districtâ€™s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

You don’t lose your right to read scary news or watch violent movies just because there are kids in the home. You shouldn’t lose your right to self-defense over the same. There is a factor of common sense, but that hasn’t been a serious problem for the overwhelming majority of families. Just like most parents don’t let their 6-year-old watch a gory horror flick or read extremely graphic descriptions of war to them at bedtime, gun owners take care when children are around their guns. There’s a difference between discovering the right solution for your home and the state removing your right to immediately defend yourself and those same children you love.

I think we can all agree that any perception of Dan Onorato supporting civil liberties is, in fact, a mischaracterization. He was absolutely right about that – just about the only thing he’s been on right on in this campaign.

Convoluted NFA Definitions

Dave Hardy points out something about the NFA and shotguns over at CleanupATF.org that I think might be incorrect. Dave says:

ATF has consistently taken the position that a shotgun that leaves the factory with a pistol grip and no buttstock, and is kept in that condition, is a pistol rather than a shotgun.

Except I don’t think that’s the case that they consider it a pistol. A pistol grip shotgun is still a shotgunÂ [UPDATE: It’s not a shotgun either] as long as its overall length is greater than 26 inches. The National Firearms Act’s definitions are highly convoluted. If you check the ATF NFA Handbook a few of their footnotes on page eight explain their view of the law. It rests in the definition in 26 USC 5845 of firearms and shotguns. See here:

(a) Firearm The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length […]

(d) Shotgun The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull ofÂ the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.

So I believe ATF still considers a pistol group shotgun to be a shotgun [See UPDATE below, they consider it to be a ‘pistol grip weapon’], provided its overall length is greater than 26 inches. It is considered to be a weapon made from a shotgun, but because of its overall length, not subject to the provisions of the National Firearms Act. I believe if you were to saw off a shotgun with a pistol grip, it would fall under the definition of “Any Other Weapon” or “AOW” rather than a short barreled shotgun.

The interesting thing about shotguns is they would be subject to the NFA provision that regulates destructive device, except for language in the definition thereof which reads:

any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sportingÂ purposes

In 1994, this definition was used to reclassify the “Street Sweeper” shotgun as a destructive device under the National Firearms Act, since it was deemed by the Clinton Administration to have no sporting use. The same thing could be done with pistol grip shotguns, if the Obama Administration were so inclined. Definitions in the NFA are screwy, and there’s a lot of room to stick it to gun owners with nuance. This is something we should look at cleaning up at some point if we ever have the political opportunity.

UPDATE: A commenter points out this bit from ATF:

Pistol Grips and ShotgunsÂ Firearms with pistol grips attached:Â The definition of a shotgun under the GCA, 18 U.S.C.Â Â§ 921(a)(5), is â€œa weapon designed or redesigned, made orÂ remade, and intended to be fired from the shoulder and designedÂ or redesigned and made or remade to use the energy ofÂ an explosives to fire through a smooth bore either a numberÂ of ball shot or single projectile for each single pull of the trigger.Â Under the GCA, 18 U.S.C. Â§ 921(a)(29)(A), handgunÂ means â€œa firearm which has a short stock and is designed toÂ be held and fired by the use of a single hand.â€ Federal lawÂ provides under 18 U.S.C. 922(b)(1), that if the firearm to beÂ transferred is â€œother than a rifle or shotgun,â€ the purchaserÂ must be 21 years of age or older.Â Certain commercially produced firearms do not fall withinÂ the definition of shotgun under the GCA even thoughÂ they utilize a shotgun shell for ammunition. For example,Â firearms that come equipped with a pistol grip in place ofÂ the butt stock are not shotguns as defined by the GCA.Â A firearm with a pistol grip in lieu of the shoulder stock isÂ not designed to be fired from the shoulder and, therefore,Â is not a shotgun. Since it is a firearm â€œother than a rifle orÂ shotgun,â€ the purchaser must be 21 years of age or older.Â Additionally, interstate controls apply. The licensee andÂ transferee must be residents of the same State.Â Other questions raised pertain to entries made in theÂ licenseeâ€™s required records with respect to firearm â€œtype.â€Â These entries should indicate the firearm type as â€œpistol gripÂ firearm.â€

Clear as a bell. Remember that next time Brady or some other group says firearms are unregulated. So they don’t mention that that it’s a “handgun” but they also don’t mention that it’s a “shotgun” either. It’s some other weird category called “pistol grip firearm” even though it’s treated the same way as a handgun for purposes of 922, since it’s not a rifle or a shotgun. Got that? I think my brain is going to explode.

We’re Very Tolerant People

As I’ve mentioned before, Daryl Metcalfe is a great supporter of the Second Amendment. But he’s also, we believe, a bit off his rocker. First the a house resolution on domestic violence turns into part of the gay conspiracy. Then soliders who exercise their rights as citizens are traitors? Not wanting to give anyone the impression that Rep. Metcalfe might be coming back into the mainstream of Pennsylvania politics, now he’s finding the gay agenda in teaching high schoolers about dating violence:

Specifically, they wanted dating relationships defined as relations between heterosexual couples. Right now, the bill — reflecting the real world that kids actually live in — makes no distinction as to gender.

During floor debate,Â Metcalfe warned his colleagues — and we swear we’re not making this up — that “a rogue teacher could introduce homosexual relationships into the conversation. And a lot of students could be offended.”

Rep. Metcalfe is curiously concerned about the gay agenda above and beyond your average citizen. While I know that many gun owners are socially conservative, as a lot we’re very tolerant people. For instance, Larry Craig still managed to get approved by the NRA Board Nominating Committee despite his wide stance. I think Rep. Metcalfe would do better to focus on restoring fiscal sanity to Pennsylvania, and continuing to protect the liberties of residents of this Commonwealth, whether they are gay, straight, orÂ otherwise. Give up the witch hunt. That crap is killing the Republican brand with younger voters, and it’s time to move on. This country and State have far bigger problems than this.

You Have to Hold Individual Politicians Accountable

Jim Geraghty makes some excellent points about the dynamic between parties when it comes to gun rights:

But there’s a catch. For even the best, most pro-Second Amendment House Democrat, the first vote they cast in the House is to makeÂ NancyÂ PelosiÂ the Speaker of the House, ensuring the floor schedule is controlled by a woman who is scored an “F” by the organization. And her speakership ensures that F-rated John Conyers of Michigan chairs the Judiciary Committee, and that liberals, often but not always anti-gun, control the important committees.

Meanwhile, if that A-rated House Democrat were beaten by some squishy C or B-rated Republican, his first vote be would make A-ratedÂ JohnÂ BoehnerÂ (or perhaps some other Republican) the Speaker.

It’s a very good point, but I’m not sure how you really get around it unless you score the vote on the Speaker and leadership. We don’t want to hitch the gun rights wagon to a particular party, but we do want to hold individual politicians accountable for their positions on our issue, and many Democrats on the issue are quite good. If we refuse to back Democrats who support our issue, we essentially offer the Democrats nothing for their support, in which case, right now, we’d be getting steamrollered in Congress.

So why not score the vote on the Speaker? Because, not surprisingly, politicians are political animals. If the Republicans and pro-gun Democrats can get together to get together and form a majority for the purposes of gun bills, they can’t necessarily get together on other matters, such as the selection of Speaker. The problem is, while the Democratic Party is divided between Progressives and moderate-to-conservative Blue Dogs, the Progressives are the ones in the safest districts, and the ones with the most seniority.

They also represent a voting majority within the party itself. The only way you could get a different Speaker than Pelosi would be if the Republicans and Blue Dog Democrats got together and elected a different Speaker. That’s not going to happen. Why? Because the party is in charge of committee assignments according to House rules, and any Democrat crossing the ailes for that kind of thing is going to find himself with the worst assignments. There’s also many many things the party apparatus can do to a Blue Dog to make him cooperate, or punish him for lack of cooperation. The system makes it very difficult for a minority faction within a party to have a whole lot of sway, so it’s very difficult for them to buck their party on a vote like Speaker. Sure, you can grade the vote, but it’s not going to make you popular on the Hill, and you’re not going to win anyway. There’s no easy answer to the Pelosi problem.

What surprises me, is that in a year like this one, you don’t see more Blue DogsÂ threateningÂ to switch parties if the progressive leadership keeps twisting their arms. Maybe there’s a good reason that move is very hard to pull off in DC, but if I were in their shoes, I wouldn’t hesitate to play that card. This is going to be a bad year to be a Democratic. Even worse if you voted for the health care bill.

Henigan Misrepresenting Concern

Dennis Hennigan of the Brady Center is misrepresenting Barr and Gottlieb’s, and by proxy all concerns about open carry:

Implicitly, Barr and Gottlieb are advising gun owners who want to carry guns in public to keep them concealed from view; that is, make sure the danger is hidden. Perhaps this exposes their real concern about the open carry movement – that it eventually will cause a surge in public concern about the far more prevalent concealed carrying of guns made possible by the gun lobby-supported “shall-issue” laws passed in most states during the last two decades making it far easier to obtain licenses to carry concealed weapons. They also likely fear that open carry may intensify public opposition to recent efforts to gradually expand the locations in which concealed carry may occur -such as parks, bars, college campuses, even airports. After all, it’s not the “openness” of open carry that scares people – it’s the presence of the guns themselves and the inherent danger they entail. The only reason there is not an equivalent reaction to concealed carry is that the danger is, by definition, hidden from view.

He seems to believe that Barr and Gottlieb are somehow tacitlyÂ acknowledgingÂ the danger. There is no significant public danger from the open carry movement. The “danger” is the Brady Campaign doing exactly what they are doing now: trying to use the issue to push their agenda and to divide our movement.

Concealed carry laws don’t exactly have low levels of support. Even in Iowa, the latest battleground for concealed carry reform, opposition doesn’t beat 50%. But what Dennis understands is that public policy isn’t made by poll, but by determined minorities. If the 43% of Iowans that want to reform the concealed carry laws are motivated to do so, while the opposition is passive, reform wins. What they are looking for is getting some of that passive opposition to turn active.

The concern Gottlieb and Barr have is not that the public will suddenly realize the danger, and the gig will be up. The concern is that, much like the public is willing to acquiesce or support equal rights for homosexuals, they might not be so keen on the idea if they believe that means they’ll see gay sex everywhere in public. The analogy to guns may not be perfect, but many people who generally don’t care about or are soft supporters of people being able to carry firearms for self-defense might have a second thought if that means they think society will turned into an armed camp.

That shouldn’t really be our goal. Our goal should be that people who want to or need to carry a firearm for self-defense be able to do so, following their ownÂ judgmentsÂ about their individual circumstances and situation. Whether that right isÂ exercisedÂ through open carry or concealed carry I could care less about. What I do care about, however, are activism methods that have the potential to create a publicÂ backlash.Â The fact that the Brady folks have suddenly jumped on this issue, after its been gaining traction for years, makes me wonder if someone on their side of the issue has paid for a focus group, and we’re now seeing Brady attempt to exploit the opportunity.

Popular Constitutionalism

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

â€œIt really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens.Â Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.â€

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call â€œpopular constitutionalism.â€ â€œBasically, itâ€™s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,â€ Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent.Â From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?