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2nd Amendment Tag

Posted by Amy Miller on December 18, 2014 32 Comments
The New York machine is responding to the tragic death of 12 year old Tamir Rice by reigniting its own war on realistic looking toy guns. Tamir Rice was killed in Cleveland last month after police officers mistook his pellet gun for a deadly weapon. According to New York law, it is illegal to sell a toy gun missing a tell-tale orange stripe, marking it as a fake as opposed to a hot gun. New York Attorney General Eric Schneiderman is firing cease and desist letters to Amazon.com, Wal-Mart, and Kmart, retailers that have all allegedly sold toy guns lacking the stripe, arguing that those sales took place in violation of New York laws intended to keep both civilians and officers safe. Via Bloomberg:
“When toy guns are mistaken for real guns, there can be tragic consequences,” New York Attorney General Eric Schneiderman said today in a statement. “Retailers cannot put children and law enforcement at risk by selling toy guns that are virtually indistinguishable from the real thing.” Schneiderman said his office found that toy guns banned in the state have been widely available online and accessible to New Yorkers. Some were advertised as “realistic looking” and “full size,” including imitation assault rifles, shotguns and pistols, he said. Since 1997, four people have been killed in New York when law enforcement mistook toy guns for real ones, he said.
In a recent article in New York Times Magazine, Jay Kang makes a great point (albeit floating in a sea of progressive order victimology) about these types of laws, and putting the burden on manufacturers and retailers to "keep us safe." The problem? Kids will be kids. Boys will be boys. If the draw of realistic weaponry overpowers the draw toward "safety first," you can kiss those orange warning stripes goodbye:

Posted by Amy Miller on December 15, 2014 38 Comments
When you think of Texas, you probably think of a magical wonderland of beer, brisket, and high-powered weaponry, all proudly put on display as if to say, "This is America, and we have won it." If you're indeed thinking that, you're absolutely right, of course; but you may be surprised to know that Texas is just one of a handful of states still harboring an outright ban on the open carry of handguns. During the past three legislative sessions (the Texas legislature meets every other year,) elected officials have tried and failed to cobble together a viable open carry bill; but Greg Abbott, current Attorney General and Governor-elect, pledged during his campaign to make open carry happen for gun-loving Texans, and he doesn't seem to be backing down. Via Fox News:
"If open carry is good enough for Massachusetts, it's good enough for the state of Texas," Abbott said the day after his election last month. And if Texas, which allows concealed handguns, embraces open carry — rolling back a 140-year ban — it would be the largest state to have done so. Open carry drew wide support in the 2014 statewide election, and at least six bills have already been filed for the upcoming session, which starts in January. Abbott has already pledged to sign one into law if sent to his desk. Coni Ross, a 63-year-old rancher in Blanco, carries a handgun in her purse for personal protection and said she'd like the option to carry it openly on her belt if she could. She already does when she's on her ranch and feels comfortable with her gun by her side. "In one-and-a-half seconds, a man can run 25 feet with a knife in his hands and stab you before you get your gun out," Ross said. "If your weapon is concealed you're dead."
Coni Ross is absolutely right, and brings up an excellent point: the Texas gun culture isn't rooted in a perverse desire to brandish exciting-looking weapons at the huddled masses, but in a desire to protect lives and property.

Posted by William A. Jacobson on December 09, 2014 20 Comments
For those of you who are new to the blog, or who have not been paying attention, Legal Insurrection filed a FOIA suit against the District of Columbia seeking records related to the non-prosecution of David Gregory and NBC News despite their clear violation of D.C.'s gun law by possessing a 30-round ammunition magazine. We are represented by Judicial Watch, which has done a wonderful job. It's a real credit to them that they work hard to dig out the truth not only on big issues like IRS targeting, but also smaller issues like how draconian D.C. gun laws are not enforced against the famous and connected D.C. elites. In the Gregory case, NBC News was warned by the D.C. Metropolitan Police Department that possession of the magazine was illegal, and that NBC News should use a photo not the real thing, but NBC News ignored the warning and used it on Meet the Press. Gregory OAG Email Dec 21 2012 NBC to MPD4 Legal Insurrection was one of the first to note the violation of law, and we pursued the story in a long series of posts. Despite the clear violation of law, the D.C. Attorney General, Irvin Nathan, decided not to prosecute Gregory or any NBC News personnel.

Posted by Andrew Branca on November 13, 2014 15 Comments
Peruta v. County of San Diego (742 F. 3d 1144) was the 9th Circuit 2-to-1 ruling this past February that found unconstitutional California's "may issue" scheme to restrict the public carry of a firearm to the wealthy and politically influential. (The full-length opinion is embedded at the bottom of this post.) Specifically, the court found that:
San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
(As an aside, I had the opportunity to meet briefly with Mr. Peruta when I spoke at the NRA's 17th Annual Firearms Law Seminar this past April, and found him quite personable.) One potential consequence of this ruling was that the losing parties could request the case to be reheard by the entire 9th Circuit panel, consisting of 11 judges.  It was generally believed that the larger panel would be much less amenable to the plaintiff's claims than was the two-judge majority in the underlying Peruta decision. (The 9th Circuit as a whole is widely referred to as "the most liberal circuit in the country.") The San Diego County defendants, however, declined to seek an en banc rehearing of the case. In an effort that can only be described as desperate, the state of California and various gun control organizations (including the moribund Brady Campaign) sought to step into the defendants' shoes by obtaining intervenor status; this would have enabled them to request the en banc hearing not sought by the actual defendants. Yesterday, however, the 9th Circuit crushed these hopes by denying them intervenor status.  This decision ends Peruta for purposes of the 9th Circuit, and thus has been perceived by many as being the final decision on the "may issue" matter in the Circuit.

Posted by Amy Miller on November 03, 2014 9 Comments
Gallup's latest gun rights-themed poll shows that by and large, Americans haven't been swayed by high-profile shootings into ceding their Second Amendment rights. In the wake of the 2012 shootings at Newtown, 58% of Americans polled said they favored stricter laws governing gun ownership; since then, however, that number has dropped to 47%. Via Gallup:
The percentage favoring stricter gun sale laws in the two years since Newtown occurred has declined despite steady and tragic high-profile shootings in the U.S at schools, malls and businesses. This past week, shootings occurred at a Seattle-area school and of police officers in Sacramento and Placer County, California. Amidst events like these in 2014, and the resulting calls for stricter gun sale laws, the 47% who favor stricter laws is just above the historical low of 43% measured in 2011. Ten years ago, three in five Americans (60%) said they favored stricter laws regulating the sale of firearms, but support fell to 44% in 2009 and remained at that level in polls conducted in the next two years. Days after the Newtown shooting, support for stricter gun sale laws swelled. Since 2012, however, Americans have retreated from those stronger attitudes about the need for more gun control, and the percentage of Americans who say the laws should be less strict -- although still low -- has edged up.
Numbers reflecting the percentage of Americans who favor a law banning the private ownership of handguns is also low, with only around 26% supporting a ban: 9byfbvyise22kwqz5zbcaq

Posted by Andrew Branca on October 14, 2014 10 Comments
Dr, John Lott, head of the Crime Prevention Research Center and long-time researcher and perhaps best known as the author of the seminal book, "More Guns, Less Crime," has taken a thorough look at a recent report issued by the Federal Bureau of Investigation and found it severely flawed. The report, entitled "A Study of Active Shooter Incidents in the United States Between 2000 and 2013," (embedded below) purports to show that "mass shootings" have increased at an average annual rate of more than 16% over that time period.  Dr. Lott demonstrates that this figure can be arrived at only by a tortuous methodology that is rational only if showing a large increase in "mass shooting" is the actual goal of the report. Sadly, we live in an era in which "science" is routinely twisted in pursuit of purely political ends, and it appears that the authors of this FBI report may have adopted this approach. Dr. Lott's formal analysis is embedded under the FBI report below, I do encourage you to read the whole thing.  As a taste, the paper's abstract reads:

Posted by Amy Miller on September 17, 2014 32 Comments
The White House chose to commemorate yesterday's one year anniversary of the shootings at Navy Yard by calling once more for a rollback of the Second Amendment. From the White House website:
One year ago, our dedicated military and civilian personnel at the Washington Navy Yard were targeted in an unspeakable act of violence that took the lives of 12 American patriots. As we remember men and women taken from us so senselessly, we keep close their family and friends, stand with the survivors who continue to heal and pay tribute to the first responders who acted with skill and bravery. At the same time, we continue to improve security at our country’s bases and installations to protect our military and civilian personnel who help keep us safe. One year ago, 12 Americans went to work to protect and strengthen the country they loved. Today, we must do the same – rejecting atrocities like these as the new normal and renewing our call for common-sense reforms that respect our traditions while reducing the gun violence that shatters too many American families every day.
If I didn't know any better, I'd think that Obama's foundering administration is trying to use the deaths of "12 American patriots" as a springboard for another gun control debate---just in time for November.

Posted by Andrew Branca on September 13, 2014 45 Comments
The majority Republican Missouri legislature handed yet another victory to pro-children activists yesterday, and a stunning defeat to those who would leave school children vulnerable to murderous psychopaths, when it overwhelmingly overrode the Democrat Governor's veto of legislation allowing teachers to be armed in schools, as reported by the NRA and other news sources. SB656 was passed and delivered to the Governor in May 2014, who vetoed the bill on July 14.  Yesterday the Missouri Senate voted to override the veto by a vote of 23 to 8, and the House by a vote of 117 to 39.  Supporters of the override came from both Democrats and Republicans. A full copy of the bill is embedded at the bottom of this post. SB656 allows the school district to designate teachers or administrators to receive extensive training as school protection officers as well as to carry a gun on school property. The law also included other pro-self-defense provisions, including allowing open carry anywhere in the state for people possessing a concealed carry license. This is very useful even for those license holders who never intend to openly carry, because it protects them from the risk of a brandishing charge in the even they unintentionally reveal their concealed handgun to casual observation. The law also lowered from 21 to 19 the age at which a person can obtain a concealed carry license, as well as other favorable provisions. SB656 will take effect no later than October 23.

Posted by Amy Miller on August 28, 2014 32 Comments
Democrats are still smiling over the recent felony indictment of Rick Perry, even as the Governor's legal team is taking steps in court to reveal the spurious nature of the charges. One consequence of the indictment, however, has thrown conservatives in Texas for a loop. Texas media began reporting last week that because of the charges against him, Governor Perry's concealed carry license has been suspended by operation of law. §411.187 of the Texas Government Code states that the Department of Public Safety shall suspend (not revoke, as it has been reported) a concealed carry license if the license holder is charged with the commission of a felony under an information or indictment. The same section of the statute states in part that if the suspension is due to a felony indictment, that the Department shall suspend the license until dismissal of the charges.

Posted by Andrew Branca on August 26, 2014 29 Comments
Just a quick note on a pretty good 24 hours for the Second Amendment with a pair of favorable Federal court decisions out of California and Louisiana, respectively.

Federal Court Rules California 10-day Waiting Period Unconstitutional (for Some)

As reported by Calguns, California's 10-day waiting period for gun purchases has been ruled unconstitutional (for all least some residents), in Silvester v. Kamala, in the US District Court for the Eastern District of California (full decision embedded below):
California’s 10-day waiting period for gun purchases was ruled unconstitutional by a federal judge this morning in a significant victory for Second Amendment civil rights. The laws were challenged by California gun owners Jeffrey Silvester and Brandon Combs, as well as two gun rights groups, The Calguns Foundation and Second Amendment Foundation. In the decision released this morning, Federal Eastern District of California Senior Judge Anthony W. Ishii, appointed to the bench by President Bill Clinton, found that “the 10-day waiting periods of Penal Code [sections 26815(a) and 27540(a)] violate the Second Amendment” as applied to members of certain classifications, like Silvester and Combs, and “burdens the Second Amendment rights of the Plaintiffs.” Under the court order, the California Department of Justice (DOJ) must change its systems to accommodate the unobstructed release of guns to gun buyers who pass a background check and possess a California license to carry a handgun, or who hold a “Certificate of Eligibility” issued by the DOJ and already possess at least one firearm known to the state.
Here's the full decision:

Posted by Andrew Branca on July 29, 2014 20 Comments
Not that it comes as any surprise, but Washington DC has filed an appeal for a stay of the Palmer v. DC ruling this weekend that ordered stopped DC's laws banning the public carry of handguns. This District's motion asks for a stay pending appeal of the DC Court's ruling, are in the alternative a stay for at least 180 days to allow the District to enact a compliant gun carry licensing mechanism.  Of course, they also request an immediate stay while the Court considers the District's motion. The District's motion states that they have consulted with opposing counsel--presumably Alan Gura--who has indicated that they do not oppose a 90-day stay, effective immediately, "pending the city council enacting legislation that complies with constitutional standards."  Opposing counsel also intends to file their further views on the motion by August 4. In the meantime, aia the Washington Times:
D.C. Metropolitan Police Chief Cathy L. Lanier issued guidance late Sunday to police officers on how to enforce gun laws in the wake of the ruling and to outline scenarios under which the carrying of a firearm would be illegal. ... “Under the current ruling, possession of a firearm outside of the home or business in and of itself MAY NOT be criminal,” Chief Lanier wrote in a memo issued to police and the public. “For example, a District resident that has a legally registered firearm may legally possess it outside of the home or business. However, District residents are still PROHIBITED from possessing a firearm that is not legally registered in the District.”

Posted by Andrew Branca on June 16, 2014 64 Comments
[Edit: The title of this post was edited to better reflect the Court's ruling.] This morning the US Supreme Court released it's ruling in Abramski v. United States--the firearm "straw purchase" gun case--in which it affirmed Abramski's convictions.  (The full-length opinion is embedded at the bottom of this post.) In reaching it's decision the majority--led by Kagan, and including Ginsburg, Breyer, Sotomayor and the necessary swing-vote, Kennedy--the Court took a very broad interpretation of the government's statutes, regulations, and even mere practice in narrowing the scope of lawful 3rd-party purchases of firearms, arriving at their conclusion less by looking at the actual statutes and regulations and more by looking at their perception of the "context" and intended "purpose" of those statutes and regulations.

Facts

The defendant in this case, Abramski, arranged to purchase a Glock 19 for his uncle, Alvarez.  Abramski had previously been a law enforcement officer, and it is common practice for law enforcement officers to be able to purchase firearms at a discount to the price generally available to the public. Although Abramski had been fired from his LEO job two years prior, he retained his police officer identification, and intended to use that ID to purchase the pistol for his uncle at a favorable price. The Uncle wrote Abramski a check for $400 with "Glock 19" written in the memo field. Two day later Abramski appeared at an FFL (a Federal Firearms Licensee, through which most gun sales are required to occur) and purchased the gun.  In the process of doing so he completed the Federally required Form 4473.  Form 4473 asks for particular personal information, and also asks the buyer to reply to a series of interrogatories. Among the questions asked was 11.a, which asks whether the purchaser is the "actual buyer" of the firearm.  Abramski answered in the affirmative--absent which the sale would not have been processed by the FFL.  He also signed an acknowledgement that a false answer to 11.a constituted a felony. Abramski's purchase cleared the NICS (National Instant Criminal Background Check System) and the FFL sold him the Glock. Abramski then deposited the check from his uncle, transferred the gun to his uncle (lawfully, using an FFL in his uncle's state, which differed from his own), and received a receipt in return.

Posted by Andrew Branca on June 02, 2014 37 Comments
Well, the National Rifle Association has finally decided to release a statement about what I call the "open carry IN YOUR FACE!" (henceforth "OCIYF!") crowd in Texas, and the implications for reasonable gun owners and concealed carriers. The money shot?
Let's not mince words, not only is [the open carry of long guns in public] rare, it's downright weird and certainly not a practical way to go normally about your business while being prepared to defend yourself. To those who are not acquainted with the dubious practice of using public displays of firearms as a means to draw attention to oneself or one's cause, it can be downright scary. It makes folks who might normally be perfectly open-minded about firearms feel uncomfortable and question the motives of pro-gun advocates.
Beyond weird, the NRA notes that these OCIYF!" activities are actually HARMING the interests of gun owners and those of us private citizens who carry firearms for person protection:
As a result of these hijinx, two popular fast food outlets have recently requested patrons to keep guns off the premises (more information can be found here and here). In other words, the freedom and goodwill these businesses had previously extended to gun owners has been curtailed because of the actions of an attention-hungry few who thought only of themselves and not of those who might be affected by their behavior. To state the obvious, that's counterproductive for the gun owning community.
Bottom line, anyone who carries a firearm for the primary purpose of "LOOK AT MEEEEE!," ought to seriously consider whether they've achieved the maturity necessary to responsibly carry a firearm in public. Or as the NRA puts it:

Posted by Rusty Weiss on May 09, 2014 11 Comments
Republican lawmakers created quite a stir earlier this week, when they complained to the New York Post that the recently passed budget contained secret funding for the SAFE Act. Two senators who wished to remain anonymous, told the Post that funds tagged for certain aspects of the SAFE Act were 'hidden' in the budget, and that they never would have voted in favor had they known. Meanwhile, several unnamed Assembly GOP lawmakers claimed that they had only found out about the funding at a state budget briefing. Nonsense. There's only three options here - they're either lying, flat-out admitting that they didn't review the budget prior to voting, or are trying to cover their 'yes' vote by alleging they didn't know what was in the budget. Numerous Republicans who had actually put their name on it, were openly debating SAFE Act funding in this year's budget.  Even a normally obedient media was pointing it out well in advance of budget debates. Via LoHud on February 7th, nearly two months before the budget passed:
Gov. Andrew Cuomo's $137.2 billion budget proposal includes an additional $3.2 million for personnel costs related to the SAFE Act, according to the head of the state police. Superintendent Joseph D'Amico told lawmakers at a budget hearing this week that the money will go toward hiring civilian employees to help with administrative duties related to the gun laws, including the processing of assault-weapon registrations and maintaining records.
On March 14th, Republican Assemblyman Steve Hawley issued a statement that read in part:

Posted by William A. Jacobson on April 28, 2014 14 Comments
We have written about Mark Witaschek many times before. Witashek was aggressively prosecuted the same D.C. Office of Attorney General that refused to prosecute David Gregory for a clear gun law violation, all because Witaschek was found in possession of an inoperable shotgun shell and "muzzle loader" bullets, Someone who’s not David Gregory convicted of stupid DC gun law violation:
Yesterday, a D.C. Judge found Mark Witaschek guilty of “attempted possession of unlawful ammunition” for possessing an antique replica muzzleloader bullet. Emily Miller at the Washington Times has thoroughly chronicled Mr. Witaschek’s court proceedings, which to date have spanned nearly two years and now appear likely to continue into the appellate stage. In brief, the case centered on a single inert piece of ammunition, which rested on Mr. Witascheck’s desk in the District, and which he did not know was illegal.
William F. Vanderpool, a retired supervisory special agent for the Federal Bureau of Investigation, [explained] to the judge that the saboted lead balls have no powder or propellant attached, so are not “live…” The primer on the shotgun shell had already been struck by the firing pin. Mr. Witaschek kept the misfired shell on his home office desk as a memento from a hunt.
Ultimately, Mr. Witaschek was sentenced to time served, a $50 fine, and is required to enroll with the Metropolitan Police Department’s firearm offenders’ registry within 48 hours.
That wasn't the end of the story. As Emily Miller further writes, the D.C. Office of Tax and Reveue now is investigating Witashek's employment payroll records:

Posted by Bryan Jacoutot on April 25, 2014 14 Comments
The anti-gun advocacy group created by Former New York City Mayor, Michael Bloomberg, just lost one of it's most high profile Republican members, Tom Ridge, the Daily Caller recently reported.
Former Republican Gov. Tom Ridge is stepping down from his position with Michael Bloomberg’s new anti-gun organization, The Daily Caller has learned. “When I signed on as an advisor to Everytown, I looked forward to a thoughtful and provocative discussion about the toll gun violence takes on Americans,” Ridge told The Daily Caller in a statement, through a spokesman. “After consultation with Everytown, I have decided that I am uncomfortable with their expected electoral work,” Ridge said. “Therefore, we have decided that we will pursue this issue in our separate spheres.” Bloomberg, hoping to add prominent Republicans to his gun control effort, had appointed Ridge to serve on the advisory board of his Everytown for Gun Safety umbrella organization. The New York Times reported last week that Bloomberg, the former liberal mayor of New York City, plans to spend about $50 million dollars to challenge the National Rifle Association.
While Ridge declined to go into detail about the "expected electoral work" Everytown has in store, it's a safe bet there won't be much room for "thoughtful discussion" on gun violence. Take a look at their most recent ad, in which survivors and family members of gun victims attack statements made by NRA leadership. https://www.youtube.com/watch?v=K6YZg9JTykA What do you think? Is it meant to appeal to your thoughts, or to your emotions? For their part, the NRA has released an ad responding directly to Bloomberg's $50 Million promise. The ad, featured below, highlights the power of small contributions from its individual supporters.
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