Shall Not Be Questioned

I’ve never been one to jump onto the victimization bandwagon or erect villains that gun rights folks can portray themselves as fighting against. I tend to think think this kind of activity can remove the focus from real action, and instead get people’s energies and attention fixated on the villains. ATF is one of our favorite villains, and much of the time they do things to deserve people’s derision and scorn. But ATF, while unique in some respects, doesn’t really act much differently than other federal regulatory bureaucracies, as anyone who’s ever worked in a regulated industry can attest to. As long as we have federal gun laws, there will be an agency charged with regulation and enforcement under the authority of those laws. That put us back to square one, no matter which three letter acronym the agency carries. That’s largely why in the case of the Austin Gun Show controversy, I’m a lot more interested talking about courses of action rather than railing against ATF for the sake of vilifying the agency. Action has to be related to goals, and the goal in this case is to preserve the integrity of the show, and prevent the City of Austin and ATF from attempting to meddle with any more shows. In the last post we saw that raising a preemption claim against the Austin Police Department was likely going to be problematic, because the landlord of the property is really the ones doing the coercion. But that doesn’t mean you can’t get the attention of these regulators. I would propose the following courses of action:

• File state and federal FOIA requests in regards to any and all communication that happened between the involved agencies and the landlord (actually, this was Dave Hardy’s idea, and a good one I think.) Depending on what you find, you might have a preemption claim. But even if you don’t, you’ll have a clearer picture of what went on.
• Almost all police departments receive funding from their states, and Texas has a very gun friendly legislature. Speak to the key committee chairs that control funding to local police departments. Agencies pay close attention when their funding sources get threatened, or there’s even a hint of a possible threat. Remember how I said how the request by APD nuisance unit to the landlord could have a threatening nature just by the very nature of who’s asking? Well, two can play at that game, and we should.
• If you can get an impressive number of gun owners together in Austin to go to a City Council meeting, and make your displeasure known, that could also have an effect. But you’d have to make an impressive showing. Three guys showing up isn’t going to be intimidating to the politicians. Filling the room is going to make them concerned.
• ATF is also not immune from funding pressures. Bit of a tougher fight there because Daniel Inouye is chair of the Senate Appropriations Committee, but Hutchison is also on that committee and is running for governor, she’ll want to stay on the radar of the gun vote. Things in the are better, because Dave Obey heads the House Appropriations Committee, an A- rated Democrat. In addition, you have five Texans on that committee, the lowest of whom is a B rated Democrat, and the rest A rated. Make sure those individuals know you’re unhappy about ATF involvement in pressuring landlords who host gun shows.

I guess what I’m trying to suggest is: don’t get mad, get even. The way you get even with bureaucrats is to get the people who essentially pay them mad. There are other avenues other than ones I mentioned here. I offer these a way to think about how politics works, and how a motivated and pissed off group of gun owners can effectively direct their energies.

A reader sent me a link to a dust up between a gun show promoter, the Austin, TX police, and ATF. I was hoping today to getting around to looking at this story more closely, but in a fantastic bit of citizen journalism, Howard Nemerov already has the scoop on this issue. His conclusion:

There are no clear-cut villains and victims here. In the final analysis, you the reader need to decide the best course of action. Facts, not rhetoric, help make educated decisions.

Having this kind of thing happen to a gun show is not all that unusual. We lost a big one here in Pennsylvania because the Fort Washington Expo Center’s new management decided they no longer wanted to host gun shows on their property. Not much you can do in that situation except find a new venue. I would point out that the Fort Washington Expo Center is now defunct, however, so maybe kicking the gun show to the curb was not their only poor business decision.

But I still want to write about what I think would be a novel legal issue in regards to gun shows, particularly if nuisance ordinances are used against them. Texas, like most other states, preempts local governments from enforcing anti-gun ordinances:

No governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.

Texas preemption statute is very strong, and I suspect whatever Austin might want to construe its nuisance ordinances to mean, it can’t construe them as meaning they can use them to force out a gun show. But does it prevent them from asking the landlord to put restrictions on the show? One could argue if there’s no legal threat, it’s not enforcement, and so preemption does not apply. But one could also argue that any lawful authority, such as a nuisance unit of a police department, that even talking to a landlord, who might have good reasons to want to stay on good terms with a police agency of that nature, amounts to a form of coercion. This would, of course, be a long shot argument, but such arguments have been made successfully in other contexts.

It’s interesting what could happen if other cities suddenly started taking generally applicable laws, and even hinting to property owners that they could be applied if they don’t kick out gun shows. Preemption laws, in spirit, are supposed to deal with that problem, but that gets more dicey laws get applied sneakily or stealthily, in a way that makes it hard for us to prove a preemption violation. For this, we will need show promoters to fight, and work with relevant organizations, like NRA, NSSF, etc, to uncover exactly what local authorities are up to if they suspect pressure is being applied to get gun shows out of their jurisdictions. Preemption is merely a tool, it’s not an absolute protection against all malfeasance on the part of local governments. Making is work is up to us.