General

“It’s a Start.” Or, Why I’m Over this Conversation

I’ve debating gun control for a long time. For the sake of my relationships with friends and family, I backed off after Sandy Hook. Rather than aggressively arguing any and all pro-gun control subjects, I settled for pointing out anti-gun propaganda put out by the disarmament faction. I try to maintain a neutral and informed voice, avoiding confrontation tone as much as possible.

I did this in an effort to mend the chasm. I wanted to find common ground. I wanted to win people over to our side by showing logic, compassion, and fair-mindedness. Hell, I wrote several posts on this blog pleading for the people of the gun to consider our culture, along with its symbols and images. I really wanted to believe that all we had was a failure to communicate.

I’m over it.

There are three words frequently used by gun-control advocates that boil my blood:

“It’s a start.”

We can go back and forth hammering out details of a real compromise, and they will close with those words, “It’s a start.”

I will lurk on their message boards and see one of them advocate for some obscene overreach, and yet someone else will still chime in with, “Well..it’s a start.”

It’s a Start…to What End?

To any gun control advocates that happen to find this post because it gets shared with you, and I sincerely hope it does: This is why we, the people of the gun, appear so obstinate to any new restrictions. To us, “It’s a start” has been muttered after every major gun control law since 1934. Every time the phrase leaves your lips, it is as if you have no recollection of what you’ve already taken away.

In fact, it seems to be the party line, right out of the Gun Control Messaging Playbook. I can’t count the number of times some gun control advocate has told me that guns are practically unregulated. When it happens, I can’t help but stare at them in shock, trying to figure out if they actually believe what they are saying, are that ignorant, or they are just trying to get a rise out of me. It’s probably all three. After Las Vegas, I had a practicing lawyer friend on Facebook advocate for a law that prohibited felons from owning firearms “as a start.” When I pointed out to him that it was already federal law, and provided the relevant US Code references, he deleted his post.

Whenever “It’s a start” is said, it always means that there is more to be done.

This is why we don’t trust you.

With your staunch cries to “Do something,” all the while being totally ignorant of what has already been done, the logical conclusion of “It’s a start” is the complete elimination of private firearms ownership.

For now, I’ll avoid analyzing the mental gymnastics that must be required for the same group of people to advocate that the government “protector class” be given a monopoly on the tools of violence, yet on the other hand, can’t help but call that same group a bunch of racist, power-tripping, jack-booted thugs.

The bumpfire stock discussion, and suppressors for that matter, is a distraction. It’s chum thrown out for the media sharks and social media mavens to circle around. It’s meant to whip the base into a frenzy of hating the intransigent NRA, and silly gun owners who want “weapons of war.”

.  .  .

On a side note, as someone who was actually responsible for launching nuclear weapons on presidential order and is very familiar with what those effects would look like, uttering the words “Weapon of Mass Destruction” in the context of an AR-15 makes you look like a blithering fool. I just thought you should know that.

.  .  .

Back on topic.

For all the talk of only wanting “sensible gun safety,” I’ve never seen a law that the disarmament crowd didn’t like. There has never been a gun control law that was just a bridge too far. The only limitation has been political expediency. Since the public doesn’t generally agree with wholesale banning of firearms, the disarmament advocates are forced to do it one inch at a time. This time it’s bumpfire stocks. Next time it’s high-capacity magazines (whatever the hell that means). After that it will be aftermarket triggers. And then auto-loading weapons. Then it will be sniper rifles. So on and so on…

“That will never happen!,” they say, “You’re just being paranoid!”

It will happen. It has happened. This is exactly the pattern that has played out in gun-control havens like California, New York, New Jersey, and even some newly-blue states like Colorado.

Every news event, every tragedy, is taken as an opportunity to take one more inch. All the while ignoring what has already been done.

Compromise…You’re Doing it Wrong

Gun control fans, do you know how we know you’re full of it when it comes to “common sense” gun reforms? It’s because you have no concept of what compromise is supposed to be. In all the debates I’ve had for over a decade, and there are a lot of them, do you know how many gun control advocates actually understood compromise?

Zero.

I always make it a point to ask, “If we agree to this, what do we get in return?” Sometimes the answer is a simple blank stare. At best, it’s been, “You get to feel better about making the country safer!” At worst, it’s been, “You get to keep what you have.”

At no point, in any debate I’ve ever had, has the gun control advocate been willing to roll back some other regulation. Even the ones that have proven ineffective at anything they were designed to do other than inconvenience gun owners.

Compromise is not an armed robbery where the victim is told, “You’re money or your life” and gets no other say in the matter. Compromise means both sides get something they want, but not everything.

Look at the stink over suppressors. If they were serious, the gun control crowd could have offered up passing the SHARE act in exchange for supporting a ban on full auto NFA “workarounds.” But they did not, and they will not. Just as the people of the gun refuse to give up one more inch of what they have left, the gun controllers will not give up inch of what they have gained. Pretending that they haven’t gained anything is just disingenuous.

The End Goal

Gun control fans, do you know why people like me continue to use statistics about cars, alcohol, knives, medical malpractice, and all the other ways people can die when discussing gun control?

It’s because we are under the mistaken impression that the conversation is about saving lives. Most of us sincerely want to find ways to reduce death and suffering. To us, it makes sense to put resources and attention where they would have the largest impact. This is why we separate suicides from homicides. Even more, it’s why we separate run-of-the-mill gangland homicide from black-swan events like Las Vegas. Each of these has different root causes, with different courses of action, and we want to help fix it where we can while respecting our natural rights to self defense.

Out mistake, really. We didn’t realize that you were really just wanting to get rid of guns. Got it. Check. Not one more inch.

If you really wanted to solve the problem with deaths, we would all be considering wider sociocultural solutions rather than just focusing on the hardware. But that’s not the discussion. Instead, you try to enact sweeping bans of things that would make no difference to 99% of the total death count per year. If you can’t get that, then you try to enact little regulations and delays that do nothing except annoy the people who are desperately trying to stay within the law and were not inclined to commit violence anyway. The people you are trying to stop? They don’t follow the laws anyway, and if they ever get caught, the firearms charge for your new pet law is the first to get tossed out during a plea deal.

I used to sincerely try and find a good compromise position that worked for everyone. I’ve even taken a lot of flak for my ideas in the past. I’ve been accused of not being a “pure enough” 2A supporter because I was willing to talk.

Well, I’m not anymore. The other day, I was listening to NPR on the way home from work. What I heard summed up it up pretty well for me:

You can only try and make us feel so guilty for being white, male, straight, cisgendered(?), liberty-minded, gun owners before we say, “Well…screw it.”

In the end, the truth is this: you are losing.

The country is embracing more and more individual liberty, from gay marriage to recreational drug use. This isn’t about conservative and liberal values, it’s about a cultural shift towards individual freedom. You don’t get to pick and choose what those freedoms are just because you don’t like them.

People feel something in the air, even if they don’t put words to it. There is a sense that something is wrong. There is a very real sense that the very institutions designed to protect us are failing. We see the 24 hours news from places like Puerto Rico, and we can’t help but wonder, “What if I was in that situation? How would I protect my family?

People are waking up, and your message is getting weak.

 

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General

The Everyday Marksman’s 2nd Amendment Wishlist

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The voters have spoken. I will admit my relief at seeing the phrase “President-Elect Donald Trump.” There has been a lot written out there on Trump’s position with the 2nd Amendment. He recently announced a 2nd Amendment Coalition, which includes some heavy hitters in the industry and government.

It seems the next four years will be good to us gun owners, or at least not as antagonistic as the last eight have been. With that said, what are my hopes and dreams for new policies? What follows are my top five realistic and workable policy changes. I realize there are a lot of folks out there who want to go balls to the wall and declare constitutional carry and a removal on all restrictions, but that path is about as realistic as Dianne Feinstein’s plan to tell, “Mr. and Mrs. America to turn them all in.”

Like the prohibitionists’ incremental limitation of rights, our best path is the incremental expansion of rights. The prohibitionists institute a new restriction, which both sides really know won’t do anything, wait a few years and then claim that more must be done. Rinse and repeat until they get to their ultimate goal of a British-style ban on ownership. Our path should look similar, except that we return rights back to the people and demonstrate that nothing resulted. There will be no blood in the streets, there won’t be a sudden uptick in bank robberies with exotic weaponry. We make the case that these rights belong to the people, and we expand them while also attacking the economic, social, and criminal root causes of violence.

With that said, here are my top five suggestions:

50-State CCW Reciprocity/National CCW License

This is something that has already been identified by the incoming administration. The main argument against this has always been that a state like California thinks that the training/permitting requirement from a state like Montana is too lax and allows an individual to obtain a permit in one state that would otherwise not be able to do so in a more restrictive state. This is, frankly, a silly argument. The same could be said of obtaining a driver’s license.

When I received my license in Florida, I took a short multiple question test and drove around a parking lot for five minutes demonstrating that I know how to stop, use signals, park, and perform a three point turn. My wife, from another state, had to drive on highways, city roads, parallel park, and do way more than I did. Both of our driver’s licenses are good in all 50 states and even foreign nations. It’s good for commerce.

The answer for CCW lies in the establishment of a suggested common national training and qualification standard. Note that I didn’t say it’s a requirement, but a suggestion. The reasoning here is that the states remain free to enforce whatever standard they wish on carrying within their own state, as is their right, but to also allow for a common accepted standard agreed upon by all the states. The existing Civilian Marksmanship Program (CMP) could be the lead on establishing the standard, creating the training, and certifying instructors. Once this is done, any CCW license with the requisite CMP-certified training standard is recognized in all 50 states.

Stopping the End-Run on Commonly Used Firearms

When the Heller decision was handed down in 2008, followed by McDonald in 2010, it was expected to be a new era in 2A rights. We believed that those decisions signaled the high court’s intent to squash many of the 2A infringements seen all over the country. The “common use” language gave us hope that assault weapons bans would be torn down on the coasts; after all, how can you get any more “common use” than the most popular rifle sold on the market?

However, those decisions ended up being very narrowly interpreted (or outright ignored) and the states have gotten away with it with relative impunity. California, for example, has continued to strengthen its already over-the-top laws that have forced residents to choose from as list of outdated pistol designs rather than the best the market currently has to offer. Several states have broadened the definition of “Assault Weapon,” implemented broader registration schemes, and even talked of confiscation of the newly-minted contraband. When the laws have been challenged, the high court chooses not to engage and emboldens the lower states to continue on their merry way.

My hope is that the appointment of new supreme court justices would stop this end-run and get the country on the same page. Furthermore, I would love to see a more concrete definition of “in common use” and preempt the states from infringing upon it. Of course, such a concrete definition has risks as well, as actually defining it may cause problems for newer designs down the line that have not yet reached the status of “in common use.”

Streamlining the NFA Process

There is no denying the huge increase in NFA-related purchases in the last decade, particularly relating to suppressors and short barreled rifles. There has already been a bit of a groundswell to remove suppressors from the NFA, and we should support that act, but I’m thinking bigger picture.

I realize that repealing the National Firearms Act of 1934 is probably not going to happen. But it was written nearly a hundred years ago, and there are provisions of it that can surely be updated to take advantage of modern technology. The NFA background check system is notoriously backlogged for months, with many people waiting up to a year to take their already purchased property home. This simply shouldn’t be the case, since the NFA background check is essentially the exact same thing as the modern NICS check that every firearms owner does when they purchase from a licensed dealer. The reality is that NFA paperwork ends up sitting in a file on someone’s desk until an examiner can get around to checking it. Add to that, individuals must then do the same paperwork, pay the same fees, and wait the same extended amount of time for every NFA purchase they make. It is a waste of time and resources.

So here is what I would prefer: If we’re going to maintain some kind of system for tracking NFA items and owners, then make it a one time thing. Have that person apply for an NFA license and perform the required background checks at the time of application. Once the license is granted, then the license holder is entitled to purchase any NFA items they wish. With each purchase, another form (like a 4473) is completed with the dealer that links the NFA item with the license. Cash and carry. Easy.

Repeal of the “Sporting Purposes” Clause

A little known component of the 1968 Gun Control Act was the introduction of language that gave the ATF authority to determine if imported weapons were suitable “for sporting purposes.” Hunting and organized target shooting (read: NRA High Power) were considered sporting purposes. Target shooting, plinking, and competition like today’s 3-Gun were not. Things like large magazine capacities, the ability to rapidly reload, and menacing appearance were considered military features not suitable for sporting. This act basically stopped the importation of foreign surplus weapons that weren’t already very old designs (i.e. the ubiquity of Mosin-Nagants).

This language was later added to in the 80’s, and then served as the basis for most of the Assault Weapons Bans in the country.

Frankly, this language is obsolete and was written in a pre-Heller decision era. Here’s a good summary of the Heller findings as written in by the Illinois Supreme Court in People vs Aguilar (emphasis mine):

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever “in-depth examination” of the second amendment’s meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation” (id. at 592); that “central to” this right is “the inherent right of self-defense”(id. at 628); that “the home” is “where the need for defense of self, family, and property is most acute” (id. at 628); and that, “above all other interests,” the second amendment elevates “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.

Nowhere does it mention “sporting” in the finding. In fact, the high court ruled that the 2nd Amendment explicitly allows common citizens to own weaponry for the purposes of self defense. As such, we should remove language from our laws relating to firearms being used primarily for “sporting purposes” and allow people to own any firearm that best suits their needs.

Promote the Safe Participation in the Shooting Sports

Education is the key to the future. There are very few problems in this country that are not solved through better education and exposure. It is ironic to me that the very same people who scream for better education as it relates to sex, drugs, and other controversial issues will happily advocate for the abstinence route when it comes to firearms. I understand why they behave this way. They want to remove shooting from the collective culture so that it dies out with the aging generations who actually enjoy it. The young generations, they hope, will not have the interest or means to participate and therefore the “obsolete” 2nd Amendment will die a slow and gleeful death.

I’m pretty sure they don’t understand the influence of Call of Duty, Battlefield, and Nerf. Hell, I initially became interested in shooting because of my years competitively playing Counter-Strike. I remember convincing my father to buy a H&K USP 9 Compact as his first gun, because that’s what the good guys started with in that game. I still kick myself for not offering to buy it off of him before he passed away.

If you really want to make a difference, then stop fighting our historic culture and embrace it. Encourage participation in the shooting sports by better utilizing the CMP, NCAA programs, and helping provide more and better places for citizens to participate in the wide variety of sports out there. Show the country that the shooting sports are a safe and enjoyable way to interact with firearms. Help them lose their mystique, and empower the common person to take care of themselves and their communities.

General

Damn, That’s GOOD [Caution: Politics]

I tend to stay away from politics on this blog, since I prefer to stick to the actual subject of shooting. But I do pay attention to the political winds, as well as important court cases. Right now, the 9th Circuit is setting to hear an en banc review of the Peruta decision in California.

The 9th had previously ruled against the State of California, which has a “may issue” type of concealed carry permit. The contention is that the “may issue” statute means that county sheriffs have discretion to decide is an individual has “good enough cause” to be issued a permit. “Self Defense” is not a good enough cause, by the way. The real issue pops up when one sheriff was sued recently and had to release all of their documentation about what constituted “good cause” for them to issue a permit. The finding was that the cause was irrelevant, and who received a permit had more to do with political contribution or notoriety.

Since the 9th ruled against the state, the Attorney General filed for an En Banc review– which basically means she didn’t like the ruling, and wants a new group of judges to look at the case again. Regardless of the outcome, this case will head to the Supreme Court next.

In any event, the filing process for briefs has begun. The brief filed by the governor of Texas particularly caught my eye. I’ll post an excerpt below, but do read the whole thing if you can.

Argument

The question presented is whether the State of California can single out one group of disfavored citizens—namely, gun owners—and impose unique burdens on their fundamental rights. If this were a case about speech, the right to counsel, or any of the myriad rights protected by the Fourteenth Amendment, every federal court in this country would reject California’s arguments out of hand. Indeed, no other group of private citizens has to prove—to the satisfaction of a government official vested with unreviewable and boundless discretion—that they really need to exercise their fundamental constitutional freedoms.

California’s only purported justification is that guns are somehow different because they pose unique “public safety” concerns. That blinks reality. It cannot be disputed that concealed-carry permit-holders are disproportionately less likely to pose threats to “public safety.” And empirical evidence proves that concealed-carry laws either reduce crime or have no effect on it. Given that it cannot be justified by facts, California’s efforts to ban the carriage of guns “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer v. Evans, 517 U.S. 620, 634 (1996).

That animus or irrational fear is no less unconstitutional here than it would be in any other area of constitutional law. As the Supreme Court has held, the Second Amendment does not create “a second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

I. CALIFORNIA IS WRONG ON THE LAW

A. Outside of the context of guns, no federal court would countenance any effort by a State to condition the constitutional rightsof its citizens on the unreviewable discretion of a sheriff to find “good cause” for their exercise. Imagine if California did any of the following:

  • No speech unless a sheriff finds “good cause” for it;
  • No public assembly unless a sheriff finds “good cause” for it;
  • No religious exercise unless a sheriff finds “good cause” for it;
  • Compelled quartering of soldiers if a sheriff finds “good cause” for it;
  • Compelled searches, seizures, and arrests if a sheriff exercises unreviewable discretion to find “good cause” for them;
  • No grand juries unless a sheriff finds “good cause” for them;
  • No protection against double jeopardy if a sheriff finds “good cause” for dispensing with it;
  • Compelled taking of private property if a sheriff finds “good cause” for it;
  • No speedy trials if a sheriff finds “good cause” for dispensing with them;
  • No public trials if a sheriff finds “good cause” for dispensing with them;
  • No impartial juries if a sheriff finds “good cause” for dispensing with them;
  • No right to confront witnesses if a sheriff finds “good cause” for dispensing with it;
  • No right to counsel if a sheriff finds “good cause” for dispensing with it;
  • No right to avoid excessive bail if a sheriff finds “good cause” for dispensing with it; No right to avoid excessive fines if a sheriff finds “good cause” for dispensing with them;
  • No right to avoid cruel and unusual punishment if a sheriff finds “good cause” for dispensing with it; or
  • No right to anything protected by the Fourteenth Amendment if the sheriff finds “good cause” for dispensing with it.

Lawyers and non-lawyers alike would agree that those hypotheticals are absurd.

But when it comes to regulating gun rights, California thinks that the State can do things that would be unthinkable in other areas of constitutional law. To take just one of the examples above, it is well settled that the government cannot give public officials unbridled discretion to determine whether a would-be speaker has good cause to speak; that is because “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988); see also Saia v. New York, 334 U.S. 558 (1948); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958); Freedman v. Maryland, 380 U.S. 51 (1965); Cox v. Louisiana, 379 U.S. 536 (1965); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992). As the Supreme Court held more than a half-century ago:

It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub, 355 U.S. at 322.

B. When it comes to gun freedoms, though, California gives its sheriffs the same unbridled discretion that is anathema to other areas of constitutional law. To get a permit to carry a firearm, a Californian first must prove to the sheriff that he or she has “good moral character”—a vacuous standard that has an ignominious pedigree. For example, “[i]n 1960 the Mississippi state constitution was amended to add a new voting qualification of ‘good moral character,’ an addition which it is charged was to serve as yet another device to give a registrar power to permit an applicant to vote or not, depending solely on the registrar’s own whim or caprice, ungoverned by any legal standard.” United States v. Mississippi, 380 U.S. 128, 133 (1965) (footnote omitted).

Second, a Californian who wants to carry a gun also must prove to the sheriff’s satisfaction “good cause” for exercising his or her constitutional rights.1F 2 Crucially, “concern for one’s personal safety alone is not considered good cause.” Panel Op. at 7 (emphasis added). Rather, to establish “good cause,” the applicant must supply “supporting documentation” that proves that the applicant faces a “unique risk of harm.” Id. at 49. Examples of such “supporting documentation” include “restraining orders, [and] letters from law enforcement agencies or the [district attorney] familiar with the case.” Id. at 7. “If the applicant cannot demonstrate ‘circumstances that distinguish [him] from the mainstream,’ then he will not qualify for a concealed-carry permit.” Ibid.

But that conception of “good cause” would turn the Constitution’s text and meaning on its head. The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. That is, the right belongs to “the people,” not to some subset of “unique” people who can successfully convince a sheriff that they (unlike their more-common neighbors) really need to carry a firearm. See also District of Columbia v. Heller, 554 U.S. 570, 579-80 (2008). Thomas Cooley, the leading constitutional scholar after the Civil War, explained it this way:

When the term ‘the people’ is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. . . . But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected.

THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 267-68 (1880; reprint 2000) (interpreting the First Amendment); see also id. at 270-71 (interpreting the Second Amendment); THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE AMERICAN UNION 350 (1880) (same); Heller, 554 U.S. at 617-19 (same). California’s approach to carrying firearms—that the right extends only to some, and only to those who are somehow “unique”—flagrantly violates these principles.

California offers only one justification for treating the Second Amendment differently from all other constitutional provisions: “public safety.” But the Supreme Court has emphatically rejected the notion that the government can use “public safety” concerns as a pretense for discriminating against gun rights. See McDonald, 561 U.S. at 782-83 (rejecting Chicago’s argument “that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety”). Thus, California is wrong to suggest that its public safety concerns give the State a legal basis to impose special and draconian burdens on Second Amendment rights.