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2nd Amendment Tag

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.

Posted by William A. Jacobson on March 25, 2014 40 Comments
Oh, how I miss my formerly home State of Rhode Island and Providence Plantations. A State run by the best and the brightest -- and the indicted and the investigated and the Democrats and the Unions. Just a few days ago the feds and State Police raided the office and home of the Democratic Speaker of the House of Representatives -- who has since resigned as Speaker. Among other things, there is a huge legislative push for more gun control legislation, as reported by ABC6:
Some Rhode Island lawmakers...are again taking aim at gun control. No fewer that nine bills are now being considered - from banning assault style weapons; to boosting sales tax on ammunition; and, limiting gun clips to no more than ten rounds. "People do have the right to own a gun. I believe in that. But I think there's also a new type of responsibility that has to come with controlling a gun and the guns that go out into the street," said State Rep. Joe Almeida (D) Providence, who sponsored three of the bills. Gun owner's rights advocates are already firing back. "We're in an election year and there is an element of this that is obviously election year antics," said State Rep. Mike Chippendale (R) Foster.
The arrogance of the politically powerful is demonstrated in this response by Democratic State Senator Josh Miller and an unidentified compatriot (added -- apparently a photographer accompanying Miller) to a question regarding the pending legislation. Miller describes himself as "[o]ne of the true "left of center" Democrats of the R.I. State Senate." The questioner, Dan Bidondi, has a radio show and is affilated with Alex Jones' InfoWars. Here's the video:

Posted by William A. Jacobson on March 04, 2014 38 Comments
We have witnessed a series of "zero tolerance" incidents in which school officials punish young children, usually boys, for using their imagination to play act guns: Here's another one, from The Columbus Dispatch:
A Columbus principal suspended a student for three days last week after the child pointed a “ lookalike firearm” at another student in class and pretended to shoot. The boy’s age? 10. The “level 2 lookalike firearm” cited in his suspension letter? His finger. “I was just playing around,” said Nathan Entingh, a fifth-grader at Devonshire Alternative Elementary School in a far northern section of the district. “People play around like this a lot at my school.” Other kids have been caught playing pretend gun games on the playground at Devonshire and weren’t suspended, Nathan said. Devonshire Principal Patricia Price has warned students about pretend gun play numerous times this year, and everyone should know the rules by now, district spokesman Jeff Warner said. Nathan put his finger to the side of the other student’s head and pretended to shoot “kind of execution style,” Warner said.

Posted by William A. Jacobson on February 21, 2014 36 Comments
I saw the videotape below at Ace of Spades HQ, as well as at Hot Air, regarding a Detroit mother at home with her children when three men, at least one of whom was armed with a handgun, attempted to kick open the front back door. Fearing for her safety and that of her children, this mother used a rifle in self-defense. She didn't hit any of the intruders, but it was enough to scare them off initially, and again when one of them tried again to break in: Viewing the video, I wondered whether the rifle this mother used would be legal in New York State under the new SAFE Act, which was rushed through the NY State legislature on short notice after the Newtown, CT, school shooting. The SAFE Act was irrational in many respects, including a 7-round magazine limit that was unworkable and ultimately thrown out by the courts, a requirement that even 10-round magazines not be loaded with more than 7 bullets, and a definition of "Assault Weapon" that relied on physical characteristics that were cosmetic and common. The SAFE Act has led to a rebellion by upstate county legislatures, almost all of whom have voted to reject the SAFE Act. Even Martha Robertson, the liberal Emily's List-backed Democratic challenger in my home NY-23 congressional District, says she is against the SAFE Act. The criminalization of otherwise law-abiding people has led numerous Sheriffs and police unions to call for repeal, and to ignore violations for now. But the SAFE Act remains the law of NY. Would this Detroit mom who save herself and her family from the violence of the armed intruders herself be a criminal in NY because of her rifle? I didn't feel knowledgeable enough about weapons, so I turned to someone who does have that knowledge, Bob Owens, Editor of BearingArms.com. Bob explains in the text below, which he forwarded to me, that the rifle would be an illegal "Assault Weapon" under the SAFE Act, not available for new purchase and required to be registered by April 1 for those who owned it prior to the SAFE Act. In NY State, this mom would be a criminal because of cosmetic features of her rifle. Here is Bob's analysis:

Posted by Jack Park on February 13, 2014 18 Comments
In a decision issued earlier today, the Ninth Circuit Court of Appeals held that the California law conditioning the right of “responsible law-abiding” citizens to carry firearms in public for self-defense purposes on a showing of “good cause” unlawfully restricts Second Amendment rights. California prohibits the open carry of firearms and imposes limits on concealed carry. In particular, San Diego County requires applicants for concealed carry permits to produce supporting documentation to establish not just that the applicant is concerned for his or her own safety, but that the applicant can identify “circumstances that distinguish [him or her] from the mainstream.” As the Second Amendment states, “the right of the people to keep and bear Arms, shall not be infringed.” The Ninth Circuit explained, “[C]arrying weapons in public for the lawful purpose of self-defense is a central component of the right to bear arms.” Accordingly, it concluded, “[I]f self-defense outside the home is part of the core right to ‘bear arms’ and the California regulatory scheme prohibits the exercise of that right, no amount of interest balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy.” The Ninth Circuit’s decision contributes to a split in the circuits that makes Supreme Court review likely. The Seventh Circuit is on the side on the Ninth, but the Second, Third, and Fourth go the other way. A petition for certiorari seeking review of the Third Circuit’s decision has been filed in the Supreme Court. In addition, a petition for certiorari that raises the question whether there is a Second Amendment right to bear arms in public has been distributed for the Supreme Court’s conference on February 21.

Posted by William A. Jacobson on January 31, 2014 10 Comments
NY-23, my home district, is a focus for both parties for 2014 because it is one of only a few competitive districts. The district is geographically enormous, a mostly rural area running along the Southern Tier of upstate New York. Once you leave Ithaca, it's a whole other country. Which is why incumbent Republican Tom Reed should be okay by a few percentage points. 2nd Amendment rights, and opposition to the NY SAFE Act, are big issues. Tompkins County, which includes Ithaca, is the exception. Tompkins County is one of only two upstate counties which has not passed a Resolution opposing the SAFE Act. County Opposition to SAFE Act ao January 2014 Guess who was the Democratic Chair of the Tompkins County legislature: Martha Robertson, the Emily's List-backed challenger to Reed. The SAFE Act is in play in the race because of Robertson's confusing voting record, where she appears to have both voted for and against the SAFE Act. WETM 18 reports:

Posted by William A. Jacobson on January 27, 2014 17 Comments
A legislator in Oklahoma has proposed legislation to ease the "zero tolerance" school policies that have created absurdities in which young children with toy or imaginary guns are punished. We're seen so many of these instances: The legislator has an opponent, the Oklahoma Education Association, as explained in this report:
A proposed law that would ease school rules when it comes to fake weapons is causing a stir. It's called the "Common Sense Zero Tolerance Act" and the bill's author says it will protect children in school. "Real intent, real threats and real weapons should always be dealt with immediately. We need to stop criminalizing children's imagination and childhood play," explained Sally Kern, Republican from Oklahoma City. "If there's no real intent, there's no real threat, no real weapon, no real harm is occurring or going to occur, why in the world are we in a sense abusing our children like this." .... It also prevents schools from punishing students "using a finger or hand to simulate at weapon," "vocalizing imaginary firearms" or "drawing a picture of a firearm." But the Oklahoma Education Association isn't on board with Kern's proposed law.

Posted by Andrew Branca on January 18, 2014 19 Comments
The Washington Free Beacon did a wonderfully humorous job fisking a post at Gawker regarding Florida's so-called "Warning Shot" law.  I previously have explained and debunked many of the myths about the law, Florida “Warning Shot” Bill Advances. The headline of the WFB piece, written by CJ Ciaramella, captures the gist of the matter succintly:  "Gawker Got Literally Everything Wrong About Florida’s New Warning Shots Bill." In reading the Gawker  article by Adam Weinstein, one can't help but wonder if the piece wasn't the product of a bet challenging Weinstein to achieve utter perfection in getting every facet of the subject matter wrong. From the headline--"The NRA Literally Wrote Florida's New Bill to Legalize Warning Shots"--forward, about the only correct thing contained in the piece is the spelling of individual names.

Posted by William A. Jacobson on January 16, 2014 23 Comments
There has been a mostly quiet refusal of county and local officials to implement and enforce the onerous provisions of the NY State gun law rushed through the state legislature in almost comical fashion after the Newtown, CT, school shooting. In the rush to legislate, the text of the law failed to exempt police and other law enforcement from limits on the number of rounds in a magazine, and imposed a ludicrous 7-round magazine limit that even the State agreed was unworkable.  That 7-round limit has been declared unconstitutional by a federal court, although the rest of the law was upheld. But what has slowed the law the most was an upstate insurrection, where almost every county legislature declared its opposition, and many clerks and local police simply ignored the law. Local Sheriff groups have come out against the law as have police unions. The Ithaca Journal reports on the result:
When a gunman killed 26 people in Newtown, Conn., in December 2012, New York’s top elected leaders rushed to toughen state gun laws in a month’s time. Propelled by the flash of emotions following the shooting at Sandy Hook Elementary, the state Legislature approved the NY Safe Act on Jan. 15, 2013, and Gov. Andrew Cuomo signed it hours later. Now, a year later, the new gun law has yet to be effectively implemented. Officially called the NY Secure Ammunition and Firearms Enforcement Act, the law regulates weapons ownership, sales, permits and ammunition. In dozens of interviews with The Ithaca Journal, county sheriffs, county clerks, a retailer, a target shooter and a hunting guide described the law’s shortcomings, administrative delays and a maze of gun permit paperwork that some local public officials predict will take years to sort out. Those delays and flaws have weakened the enforcement of the SAFE Act — designed to protect New Yorkers from the national horror of mass shootings in schools, shopping centers and theaters.

Posted by Andrew Branca on December 31, 2013 21 Comments
Federal District Court Judge William M. Skretny has found that most provisions of NY's SAFE Act--passed only one month after the Sandy Hook elementary school shooting--do not infringe the Second Amendment. He did, however, find that the provision that limits magazine capacity to only seven rounds was unconstitutional under the Second Amendment. This seemingly small win for gun owners is actually very important. Almost no semi-automatic pistols have 7-round magazines available.  Because semi-automatic pistols are the overwhelming preference for civilian self-defense--as well as for police and military use--the 7-round limit would have effectively banned the large majority of semi-automatic pistols on the market.  (Technically, one could use a large capacity magazine and only load it to 7-rounds; if, that is, one were willing to risk a felony conviction based on a police officer's honest ability to accurately count to seven. Not me, thanks.) Ironically, one of the few semi-automatic pistols for which 7-round magazines are readily available is the model 1911, which most folks not familiar with guns will know as the Colt .45 pistol of WWII fame.  Thus, this relatively lethal handgun firing the potent .45 ACP cartridge would have been granted preference over many handguns of lesser lethality. Thus the tossing of the 7-round limit saves for law-abiding citizens the vast majority of contemporary handguns for their self-defense use. Unfortunately, the remainder of the SAFE Acts egregious restrictions on the 2nd Amendment rights of law-abiding citizens were allowed to stand, including severe restrictions on so-called "assault weapons," mandatory registration which can only serve the purpose of future confiscation  of firearms possessed by law-abiding citizens (because criminals do not register their guns or otherwise obey gun laws), and so forth. The full-length judicial opinion from Judge Skretny is available below. Happy New Year! --Andrew, @LawSelfDefense
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