Archive for the 'Second Amendment' Category

From Chicago Tribune:

A gun-rights group has appealed to the U.S. Supreme Court after a federal judge in Illinois ruled against allowing people to carry firearms on the street.

The Second Amendment Foundation announced Monday it’s appealing the decision by federal district Judge Sue Myerscough.

Currently only Illinois and the District of Columbia prohibit the concealed carrying of weapons. Gun owners say that infringes on their 2nd Amendment right to keep and bear arms.

Myerscough ruled Friday that the 2nd Amendment allows citizens to protect themselves with guns in their home but not on the street.

Second Amendment Foundation founder Alan Gottlieb says citizens “don’t check our constitutional rights at the front door.”

A similar Illinois-based lawsuit backed by the National Rifle Association remains in federal court.

The Supreme Court had the chance to clarify issues associated with the scope and expanse of the second amendment in numerous recent cases, including the case of Sean Masciandaro (which they declined to hear).  There was a similar decision in the Southern district of New York concerning carrying a weapon outside the home.  We are here because this is exactly where the opinion in Heller versus D.C. put us, with lower courts stripping our constitutional rights because the opinion didn’t make it clear that the second amendment extends outside one’s domicile.

The SCOTUS has yet another good opportunity to clarify things and set the record straight.  Let’s hope that they don’t fail this time around.

That’s what Josh Horwitz would have you believe.  Actually, the Huffington Post can’t get their narrative straight.  Five days before publishing Horwitz’ piece they published the narrative that background checks of firearms spiked in 2011 and especially towards the end of the year.  But let’s note that consistency isn’t the stock and trade of the Huffington Post and move on.

While noting that background checks for firearms had increased, Josh points out that “Thousands of background checks each year result in denials” … “Background checks are performed under a number of circumstances that do not involve gun sales, for example, when an individual pawns a weapon and later redeems it” … “In some states, a concealed handgun permit exempts permit holders from having to undergo additional background checks when they purchase new firearms,” and so on the explanation goes.

That these same exceptions and caveats existed prior to 2011 and also effected data from the previous years (assumed to the same extent unless and until proven otherwise) is irrelevant to Josh.  What matters is selling the narrative.  But Josh must have missed the memoranda, and presumably there isn’t really any better witness than firearms dealers.  A sampling (albeit anecdotal) follows.

There has been an increase in both the sale of firearms and in concealed handgun permit requests in Gaston County, North Carolina, in 2011.

In Kernersville, North Carolina, firearms sales were up as much as 15% over the previous year.

At Adventure Outdoors  in the Atlanta suburb of Smyrna, twice as many firearms were sold last month as they did in December of 2010.

In Elkhart, Indiana, Midwest Gun Exchange is seeing a lot of first time families and women becoming involved in the shooting sports and self defense.

In Tucson, Arizona, there are record-setting sales for firearms to women.

At Second Amendment Sports in Bakersfield, California, firearms sales were up 25% from the previous year.

In and around Cleveland, Ohio, local firearms dealers say their sales have been up from anywhere between 20 and 40 percent. A large part of the surge in gun sales has been by women who want to learn how to shoot and defend themselves.

In Fort Worth, Texas, sales of firearms to women have been “through the roof” according to dealers.

In Yakima, Washington, firearms sales climbed by a quarter over the holidays compared to last year.

The Gun Center in Frederick, Maryland, had its best December in 25 years in business — “and not by a little,” owner Bill Kelley said.

At Sharpshooters in Lubbock, Texas, they have seen their handgun sales increase by 10 to 15 percent over the past year.

Sales of firearms to women in Permian Basin, Texas, have doubled.

You see, Josh Horwitz relied on data supplied by the highly biased Violence Policy Center for his analysis.  But he is using the data to attempt to dispute a tidal wave of evidence that the second amendment is alive and well with American citizens.

It isn’t clear what Horwitz is attempting to do with his analysis.  Perhaps he intends to substantiate the constant assertions by his organization and the Brady Campaign that the NRA “owns” the Congress, and always uses scare tactics to convince people to give more and more of their money to the NRA in order to protect the second amendment – that the real threat isn’t gun control advocates, and in fact, there are fewer gun owners in America.  The real threat is the NRA.  Perhaps that’s his aim, although it’s an odd, forced, stilted and uncompelling argument.

Then there are those like me who believe that until recently (in American Rifleman magazine), Wayne LaPierre and Chris Cox have undersold and soft pedaled the message.  They seem to have just recently hit their stride, but this just goes to show that not all of us propagate NRA conspiracy theories or fall prey to them.  Many of us are out ahead of them waiting for them to catch up.  If the NRA is Horwitz’ target, his analysis fails miserably.  If not, then no one knows why he wrote the analysis in the first place.  Besides, if there are fewer and fewer gun owners in America, then there is far less need for gun control laws, another unintended consequence of Horwitz’ argument.

From The San Francisco Chronicle:

Peace officers throughout California have bought more than 7,600 assault weapons that are outlawed for civilians in the decade since state lawmakers allowed the practice, according to data obtained by the Associated Press after it was revealed that federal authorities are investigating illegal gun sales by law enforcement.

Investigators have not said what kinds of weapons were involved, but did say they were ones that officers can buy but civilians cannot. That category also can include certain types of handguns and high-capacity ammunition magazines.

The AP’s findings and the federal probe have prompted one state lawmaker to revisit the law to ensure that the guns can be bought only for police purposes.

“I think it’s much more questionable whether we should allow peace officers to have access to weapons or firearms that a private citizen wouldn’t have access to if the use is strictly personal,” said Assemblyman Roger Dickinson, D-Sacramento.

The information was obtained through a California Public Records Act request filed after federal authorities served search warrants in November as part of an ongoing investigation into allegations of illegal weapons sales by several Sacramento-area law enforcement officers.

The investigation has raised questions about the kinds of restricted weapons that the more than 87,000 peace officers in the state are entitled to purchase and about a 2001 law that allows them to buy assault weapons “for law enforcement purposes, whether on or off duty.”

The AP found that some departments allow officers to use the weapons in their off time while others require that the weapons be used only on-duty, although an opinion by the state attorney general issued last year says officers can acquire the guns for any purpose but must relinquish them when they retire.

A department-by-department breakdown of purchases made this year, released as part of the AP’s records request, shows that Los Angeles Police Department officers bought 146 guns, the most in the state. The department’s policy says the guns are to be used only for police purposes.

Today, about 1,300 of the nearly 10,000 LAPD officers have assault rifles, more than 500 of them purchased by the officers themselves.

“We’re not interested in loading up people’s gun closets with assault weapons,” said Cmdr. Andrew Smith, who spent $1,200 on his gun. “The idea is that these guys would be able to have these in the trunks of their police cars if they’re needed.”

Officers in the San Diego Police Department, Riverside County Sheriff’s Department and Long Beach Police Department also registered large numbers of assault weapons so far this year.

Skirting the law, they are.  So the LEOs purchase the weapons, and then don’t turn them in when they retire.  But the LEOs want to keep their weapons.

“We think that an officer that extends himself and buys this for his department and his community is being unduly punished as they go out the door,” said Ron Cottingham, president of the Peace Officers Research Association of California.

City police officers, county sheriff’s deputies, California Highway Patrol officers, state game wardens, school police officers and other law enforcement personnel can buy assault weapons with their own money, at a cost often exceeding $1,200.

The proposed legislation is still being written but likely would allow officers to re-register their weapons once they retire, similar to the registrations required for those who owned assault rifles before California’s ban became law in 1999.

The peace officers group is a federation of more than 900 local, state and federal law enforcement associations representing 62,000 public safety employees in California. It bills itself as the state’s largest law enforcement organization.

No, no, and a thousand times no!  It doesn’t work this way.  So there is some utility in so-called assault weapons having nothing whatsoever to do with the official duties of being a law enforcement officer (such as home defense), or the retired LEOs wouldn’t want to keep them.

But if retired LEOs can be deemed to be stable, crime-free and reliable enough to own a weapon with a high capacity magazine and a forend grip, then so can citizens who weren’t employed as LEOs.  There is no basis – logical, moral or legal – on which to exempt retired LEOs from the same law under which everyone else must live in California.

I must strongly encourage the state legislature of California to do the right thing and reject this subversion of the rule of law.  On the other hand, if they may be persuaded that so-called assault weapons aren’t really used to perpetrate mass killings like the propaganda says, and that the AR may be considered a legitimate home defense weapon, and if the sensibilities of the retired LEOs in California are correct and there is some utility to so-called assault weapons in defense of the home, then perhaps they may also be persuaded to undo the assault weapons ban for all citizens of California.  Either way, consistency isn’t the hobgoblin of little minds as claimed by the idiot Ralph Waldo Emerson.  It is the stuff of life.  It’s the way we all live.

As an editorial remark before beginning our journey through Mitt Romney’s views on the second amendment and gun control, I cannot promise the reader that this article will be easy to read, nor that the various videos and sources won’t be more time consuming than you would otherwise wish.  However, I can promise you that after studying the sources I cite, you will understand enough about Mitt Romney’s views to categorize and understand what he believes and see how his record matches what he believes.

To begin our journey, take a moment and view Romney’s position on the federal assault weapons ban that had a sunset provision at 0001 hours on September 13, 2004.

Take careful note.  Romney is referring to the federal assault weapons ban, not the assault weapons ban he signed into law in Massachusetts.  Along with Obama, he would have signed an extension of this ban.  But this is only the beginning of the maneuvering concerning the portrayal of his views.  The Gun Owners Action League attempts to defend Romney’s having signed the pertinent bill banning assault weapons.

The bill was the greatest victory for gun owners since the passage of the gun control laws in 1998 (Chapter 180 of the Acts of 1998). It was a reform bill totally supported by GOAL. Press and media stories around the country got it completely wrong when claimed the bill was an extension of the “assault weapon” ban that had sunset at the federal level. They could not have been more wrong … [the bill]

Permanently attached the federal language concerning assault weapon exemptions in 18 USC 922 Appendix A to the Massachusetts assault weapons laws. This is the part that the media misrepresented.

In 1998 the Massachusetts legislature passed its own assault weapons ban (MGL Chapter 140, Section 131M). This ban did not rely on the federal language and contained no sunset clause. Knowing that we did not have the votes in 2004 to get rid of the state law, we did not want to loose all of the federal exemptions that were not in the state law so this new bill was amended to include them.

GOAL is dancing on the head of a pin.  For those people who claimed that the particular bill was an “extension of the federal assault weapons ban,” that’s a bit of a misnomer.  I have never made that claim.  Romney signed an assault weapons ban in Massachusetts, and that’s the long and short of it, whether it was precisely an extension of the federal ban or not.  The other crumbs that “fell from the master’s table,” as it were, included a reversal of prior Massachusetts law that banned certain versions of certain pistols that were considered competition weapons (“bull” barrels, modified trigger pull force, etc.).  The concessions given by the Democrats were not very significant, and the assault weapons ban was continued into the foreseeable future for Massachusetts.

What is more troubling, however, is Romney’s defense of the bill.  Assessing a DNC ad criticizing Romney’s flip-flop on assault weapons, Politifact.com weighs in with this citation from 2004.

“It very well may be. In our state what we did is we got both sides of this issue to come together, because we relaxed a number of things, allowing people who hadn’t been able to get weapons in the past to be able to purchase those. … There are hunters in the NRA and the gun owners’ action league (who) backed the legislation that said, ‘Look, let’s protect our citizens from dangerous assault weapons, but let’s also make … regular weapons more available to our citizens.’ And we made a compromise that works.”

Our takeaway is that Romney, at that moment, was arguing that ordinary Americans have the right to bear some types of arms but not assault weapons. He said it “very well may be necessary” to extend the federal assault-weapons ban, while adding that he acted on the state ban because it also included expansions on other types of gun ownership rules.

And then in 2008 they have this from Romney.

“I do support the Second Amendment. And I believe that this is an individual right of citizens and not a right of government. And I hope the Supreme Court reaches that same conclusion.

“I also, like the president, would have signed the assault weapon ban that came to his desk. I said I would have supported that and signed a similar bill in our state. It was a bill worked out, by the way, between pro-gun lobby and anti-gun lobby individuals. Both sides of the issue came together and found a way to provide relaxation in licensing requirements and allow more people to have guns for their own legal purposes. And so we signed that in Massachusetts, and I said I would support that at the federal level, just as the president said he would. It did not pass at the federal level. I do not believe we need new legislation.

“I do not support any new legislation of an assault weapon ban nature, including that against semiautomatic weapons. I instead believe that we have laws in place that if they’re implemented and enforced, will provide the protection and the safety of the American people. But I do not support any new legislation, and I do support the right of individuals to bear arms, whether for hunting purposes or for protection purposes or any other reason. That’s the right that people have.”

[ … ]

The reality is that Romney’s answer in the debate was unfocused, even self-contradictory. He said that he would have signed a federal assault ban extension — but he added that after it failed on the federal level, he felt he did not believe new legislation was necessary.

Romney is dancing on the head of the same pin that GOAL is on.  His position is logically incoherent because he is attempting to appeal to multiple (and diametrically opposed) constituencies.  In fact, the language he used to defend the bill is as troubling as his having signed it.

“These guns are not made for recreation or self-defense. They are instruments of destruction with the sole purpose of hunting down and killing people.”

Of course, these guns are indeed used for home defense, and modern sporting rifles of the AR design are used for hunting, target shooting and competition in the .223 / 5.56 mm, .243, and .308 / 7.62 mm calibers.  Hear the same sentiments in the video below.

These same words could have been spoken by Dennis Henigan of the Brady Campaign.  If these sentiments seem conflicted between supporting the second amendment and finding room for gun control, Alex Kauffman writing for Conservative Daily News explains why as he analyzes similarities between Romney and his father on three different fronts.

Handgun Ownership: In order to understand Mitt Romney’s actions here, it is necessary to give a little background information about Massachusetts gun control laws: In 1998, Massachusetts established a list of “safety” criteria for handguns sold in the state. The criteria were designed to disqualify most handguns. The Roster is the list of those few makes and models which have passed the testing requirements.

Mitt Romney created two exemptions: One for handguns already licensed in the state prior to October 21, 1998, and one for “match-grade” pistols (high-dollar handguns purpose-built for shooting competitions).

The 1998 exemption is significant when one understand the “preban effect”: Some gun laws are written with an effective date, where firearms sold after the date are subject to the law, while those sold before the date are “grandfathered”. Since there is a limited supply of grandfathered items, the sale price of those items skyrockets.

The net effect of Mitt Romney’s exemptions was this: In Massachusetts, a person now has three options for legally owning a handgun: 1) an expensive pre-1998 handgun; 2) an expensive “safety-approved” handgun; 3) an expensive match-grade handgun.

Compare this to George Romney’s “safety” law- Public Acts 215 and 216 of 1964- which required all handguns to be submitted, within ten days of purchase, for inspection by a law enforcement officer in order to obtain a “safety certificate”. “Safety”, however, was undefined, and determining that a handgun was “safe” was left entirely to the discretion of the officer conducting the inspection. In effect, law enforcement could determine any handgun to be “unsafe”, and confiscate the handgun on the spot, without compensating the buyer for his loss. This provided a disincentive for unpopular persons and minorities to attempt to lawfully buy handguns, knowing their handguns would be confiscated. Likewise, a lower-income person would not want to take the risk of saving money to buy a handgun, only to have their investment confiscated in this manner.

Like father, like son: Both Romneys used the guise of “safety” to deny the right to own a handgun to lower-income persons and “undesireables“.

Next, Kauffman turns to carrying handguns.

Before George Romney became governor, Michigan had created a very restrictive licensing law for carrying a concealed handgun: License applicants had to prove an immediate physical risk to a county license board consisting of representatives of the county prosecuting attorney, county sheriff, and the commissioner of state police. Needless to say, many applications for a carry license were rejected (and this state of affairs led to concealed carry reforms decades later). A concealed carry license was also required if a person wanted to transport a loaded handgun in an automobile, whether or not the handgun was concealed. Open (visible) carry of a handgun was technically legal (outside of an automobile), but in practice, doing it would usually lead to arrest for a “disturbing the peace” type of charge.

So, what was one to do if they wanted to carry a handgun, but weren’t politically connected enough to get a concealed carry license? Answer: Get a private security guard license. Said license authorized a person to carry a handgun openly without fear of arrest, carry a loaded handgun in an automobile, and was issued to virtually anyone who applied.

George Romney, however, made that practice illegal. Public Act 100 of 1966 made it a misdemeanor for a licensed security guard to carry a handgun except during work; Public Act 49 of 1967 made it a felony.

Romney did, however, extend concealed carry privileges in Michigan to licensees from other states- understanding that, in the 1960s, almost all states had similarly-restrictive processes for issuing a license to carry concealed. Romney did little more than extend a privilege given to an “elite few” in his state, to the similar “elite few” of other states.

By comparison, Mitt Romney had little work to do in this regard: By the time he took office, Massachusetts already had a two-tiered carry law: Persons with a “Class B” license could “carry” (transport in a box) an unloaded firearm to and from hunting areas and target ranges; the “elite few” granted a “Class A” license (issued to those who could prove a “need” to local law enforcement, as in Michigan in the 1960s) were entitled to carry a concealed handgun for self-defense.

While running for Governor in 2002, Mitt Romney infamously said: “I won’t chip away at them; I believe they protect us and provide for our safety.” And he didn’t.

Like father, like son: Both Romneys supported restricting the carrying of handguns for self-defense to an “elite few” of police and politically-connected businessmen.

Kauffman’s discussion on Romney and assault weapons is a recapitulation of what we already know.  Summarizing his analysis, Kaufmann says:

It is fair to say that Mitt is an elitist on the subject of firearms. His record demonstrates a WASP-y, 1950′s view of gun ownership: “Decent” people own guns for hunting and sporting, and protecting their homes. “Decent” people don’t “need” to carry guns for self-defense. Preventing people who aren’t “decent” from owning guns is a good idea.

I have spent some time studying the firearms laws in Massachusetts, and find them to be some of the most draconian of any state.  There are also odd and inexplicable statutes such as this one:

Such club shall not permit shooting at targets that depict human figures, human effigies, human silhouettes or any human images thereof, except by public safety personnel performing in line with their official duties.

Presumably this is part of that elitist culture in Massachusetts, where LEOs can train on silhouettes but other shooters can’t.  My state, on the other hand, sees the common sense in requiring CHP holders to be qualified on their weapons.  I filled out paperwork for the County Sheriff attesting that I had been tested placing so many rounds on target at 7 yards using silhouettes.  It’s better, in the state’s opinion, if I am going to carry a weapon, to ensure to the extent possible that my rounds impact their intended target if I ever have to use my weapon.

As best as publicly contradictory views can be assessed and summarized, Romney wants firearms only in the hands of sportsmen who hunt, and then only transported to hunting lands in certain ways (I would point out that the second amendment has absolutely nothing whatsoever to do with hunting).  Only LEOs have the right to carry, along with a certain small number of other “approved” people.  You have the right to own a handgun in your own home, but only under certain circumstances, and only if you can afford the high price.  If you want to carry that weapon outside the home, you’re a creepy person, perhaps even poorly bred, uncouth and ill mannered.  You’re even more creepy if you want one of those awful assault weapons.  You just want to kill lots of people.

In a nutshell, Romney is a consistent Northeastern elitist concerning his views on the second amendment, smokescreens notwithstanding.  He and the Brady campaign got along just fine while he was governor of Massachusetts.

From CSM:

The US Supreme Court declined Monday to take up a potentially important gun rights case examining whether a federal regulation banning loaded firearms from vehicles in a government park violated the constitutional right to keep and bear arms.

Lawyers for a Virginia man had asked the justices to examine a question left largely unresolved in the high court’s two prior landmark rulings identifying the scope and substance of Second Amendment protections. The question is: Does the Second Amendment guarantee a right to bear arms in public for personal protection?

The court dismissed the case in a one-line order without comment. The action leaves lower court rulings intact and postpones the prospect of high court clarification on a key gun rights issue.

[ … ]

The dismissed appeal, Masciandaro v. US (10-11212), had asked the court to examine whether Americans have a right to carry loaded weapons in public places for self defense.

How the justices answered that question would have established guideposts for future gun regulations at the local, state, and national levels of government.

In the 2008 decision, District of Columbia v. Heller, the court said that gun rights are not unlimited. The court said there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The details of the case can be found here, here and here.  Fundamantally at issue is whether the Second Amendment carries the right to possess a weapon outside the home, and the lower courts are almost begging for the Supreme Court to answer this question in the wake of the half-hearted Heller ruling.

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

So in spite of the urgent need to sort out the lower court chaos concerning bearing arms, the Supreme Court declined to hear Sean Masciandaro’s case.

Supreme Court fail … big time.  This is just what Lanny Breuer asked them to do in his brief, and I’m sure that Dennis Henigan is popping the cork somewhere.

AFP:

A top US Justice Department official told lawmakers Tuesday that better controls are needed to help stem the flow of weapons from the United States into Mexico, where they may end up in the hands of drug cartels.

“It is clear that we need more tools to get those people who are buying the guns and illegally transporting them to Mexico,” Assistant Attorney General Lanny Breuer told a Senate Judiciary subcommittee hearing. “We need to stop the flow.”

According to Justice Department figures, in the past five years 94,000 weapons have been recovered from Mexican drug cartels, of which 64,000 — 70 percent — come from the United States.

Yet currently the US Bureau of Alcohol, Tobacco and Firearms (ATF), a division of the Justice Department, is not permitted to “receive reports about multiple sales of long guns, of any kind of semiautomatic weapon or the like,” Breuer said.

“Very few hunters in the United States or sports people and law-abiding people really need to have semiautomatic weapons or long guns,” he said.

Breuer said that if US officials were notified then they could keep track of the powerful weapons.

This is a remarkable report on the testimony before Congress for several reasons.  First, even now after all of the information is out on the scandal that Fast and Furious has become, Breuer is still pretending that the handover of thousands of weapons to the drug cartels with absolutely no ability whatsoever to track them any further than the border was all about trying to stop the flow of weapons to the drug cartels.  It’s absurd on its face.

Next, Breuer still insists on perpetuating the 90% myth (although it has now morphed into the 70% myth in an apparent attempt to make it more believable).  Finally, Breuer steps on his own testimony by reintroducing the anti-firearms argument to the calculus.  If he was smart he would have avoided this as a potential for contaminating his (and the Justice Department’s) motives.  But like a dog returns to its own vomit he must continue his assault on the Second Amendment.  It’s a canard, this idea that so-called assault weapons are somehow responsible for mass shootings in the U.S.  Based on information I compiled when examining Heller II and assault weapons, long guns and assault rifles were no more likely to be used in shootings than handguns or shotguns.  Moreover, the number of mass shootings is so low as to be statistically insignificant.  They just don’t happen that often in America regardless of what the main stream media portrays.

But Lanny Breuer wants everyone to shoot a bolt action rifle, apparently, or better yet, nothing at all (Would Breuer allow us to use single action revolvers?).  Law abiding citizens just don’t need such a thing, according to him.  Not for hunting feral hogs in Texas or Georgia, not for home defense, not for sporting (such as 3-gun or other shooting competitions like IDPA), not for any reason at all.  And thus has Breuer told us what he and the Justice Department (and by extension, the White House) really thinks is important in this whole affair.  Citizens don’t need firearms.

Got it.  Hopefully the American public will file that one away for the next election cycle.

UPDATE: Cross posted at reddit/r/guns.

UPDATE #2: Thanks to Dave Hardy for the attention.

UPDATE #3: Thanks to Say Uncle for the attention.

From WYFF4.com:

The Spartanburg County Sheriff is known for speaking his mind, and at a news conference on Monday, he didn’t hold back his anger and frustration after a woman was attacked in a park over the weekend.

Investigators said 46-year-old Walter Lance grabbed a woman who was walking her dog in Milliken Park on Sunday afternoon. They said Lance choked the woman, made her take off her clothing and tried to rape her.

Lance is in custody and was denied bond on Monday.

Sheriff Chuck Wright opened his news conference by saying, “Our form of justice is not making it.”

He said, “Carry a concealed weapon. That’ll fix it.”

Wright said Lance had been charged numerous times with crimes again women, and other crimes such as resisting arrest and escape. Wright said Lance had been on probation for a federal gun charge.

He referred to Lance repeatedly as an “animal,” and expressed his disgust about Lance’s long record and the attack.

Wright said Lance has had more than 20 charges dating back to 1983.

Wright said Lance has been in jail more often than he has, and he runs the jail, and he said Lance gets out easier. Wright punctuated it by saying, “And I’m aggravated.”

He said he doesn’t believe every person needs to be kept in jail, but he said, “I don’t think this animal deserves to be out in our society, walking alongside our women.”

Wright said,”Liberals call me and tell me the chain-gang form of justice isn’t working. Well, let me inform you, your form of justice isn’t working either.”

He said Lance should not have had the right or opportunity to “violate a good, upstanding woman.”

“This is a horrific crime,” Wright said. “Her life was threatened so many times.”

He said Lance “doesn’t fight police or men folk — he just goes after women.” He said Lance is not married because, “No woman can stay married to him because he beats them down too much.”

Wright said, “It’s too bad someone with a concealed weapons permit didn’t walk by. That would fix it.” He said people are tired of doing the right thing and criminals getting away with their actions.

He said several times, “I want you to get a concealed weapons permit.”

Wright said, “I’m tired of looking at victims saying, ‘There’s life after this’ … I’m tired of saying, ‘We’re sorry, we can’t keep them in jail.'”

Wright said in his view, gun control is, “How fast can you can get the barrel of your gun back on the target?”

I know this county.  It’s right down the road from me.  And it’s refreshing to hear a law enforcement officer admit to the truth.  LEOs are minutes away when crime happens in seconds.  They cannot possibly prevent crimes except to keep the criminals off of the streets, and Sheriff Wright reminds us that this is a dubious proposition in spite of their best efforts.

And also take careful note.  He doesn’t restrict his admonition to self defense inside the home or the so-called “castle doctrine.”  He said, “It’s too bad someone with a concealed weapons permit didn’t walk by. That would fix it.”

Fix it indeed.  One still has to be careful to be responsible and know the circumstances, know the law, have previously made the commitment to intervene in such circumstances (this requires some serious consideration), and be qualified with your weapon (trigger discipline, muzzle discipline, knowing what’s behind your target, knowing that the one attacked is in imminent bodily danger or in danger of sexual assault).  But assuming these stipulations, the Sheriff knows what we all know.  Law enforcement begins when your person is jeopardy, not when the police arrive on scene.

In No Right To Carry Concealed Handgun and Heller Versus D.C. Before the Circuit Court of Appeals (Assault Weapons Ban), we discussed the case of Sean Masciandaro.  While traveling, Mr. Masciandaro fell asleep in his automobile at or near Daingerfield Island, an area of NPS land near Alexandria, Virginia.  He had a handgun, and instead of separating the ammunition in proximity from the weapon, he had the weapon loaded.  He was convicted of a crime, and has appealed the case all the way to the Supreme Court of the U.S.

Since Mr. Masciandaro’s conviction, Congress has passed a law prohibiting executive regulation of enforcement of weapons bans on National Park land (including the specific infraction with which Mr. Masciandaro was convicted).  We will revisit this fact later in our analysis.  Mr. Masciandaro’s attorneys submitted their Petition for Writ of Certiorari, and until recently were awaiting the response of the Solicitor General.  Donald B. Verrilli and Lanny A. Breuer finally submitted their Brief for the United States in Opposition to Sean Masciandaro.

Analysis of Core Argument[s] in Brief for the U.S.

The brief spends some unfortunate pages rehearsing what we already know about this case, providing detail that has been provided  by they attorneys for Mr. Masciandaro.  By the time that the argument begins and goes a single paragraph, it is reduced to the following three unrelated points: (1) intermediate scrutiny is appropriate (and thus the government is not required to prove whether the core question implicates Second Amendment considerations), (2) the level of danger with a loaded weapon is high and warrants government controls in the interest of public safety, and (3) the case is irrelevant due to its having been made void by an act of Congress.

On page 8 the brief begins the argument that the subject regulation implies specificity inasmuch as it only applies to loaded firearms in National Parks and inside a vehicle.  The argument to specificity is important and we will revisit its implications.  On page 10 the brief argues that whether the core right identified in Heller extends outside the home as well is an “abstract question,” and adds that the case of Masciandaro “presents no occasion to decide that issue.”  On page 12 the brief extends the argument that whether the Second Amendment extends outside the home is an “abstract question.”

On page 13 the brief begins to walk this argument back when it states:

Petitioner suggests (Pet. 21) that lower courts “will continue to limit the Second Amendment right to self-defense in the home” until this Court affirmatively extends its scope. Even if that were so, it would not preclude this Court from addressing the broad question, after full consideration by the lower courts, in a case (unlike this one) where its resolution would be outcome-determinative.

So rather than an “abstract question” effecting the broad application of firearms rights outside the home, in just a few pages the Masciandaro case has become one that cannot possibly be “outcome-determinative” because any decision by the U.S. Supreme Court would effect only regulations in National Parks (or more specifically, the case of Sean Masciandaro in a National Park convicted of this specific crime at this specific time in history).

A new section begins the argument (on page 14) that the question of bearing firearms outside the home is not “cleanly presented” in the Masciandaro case.  Brief continues:

… when this Court in Heller pointed out that “the right secured by the Second Amendment is not unlimited,” 554 U.S. at 626, it identified several “presumptively lawful” regulations of that right, id. at 627 & n.26, including “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” id. at 626. Although the court of appeals found it unnecessary to decide the issue, national parks — heavily traveled, government-controlled areas where “large numbers of people, including children, congregate for recreation,” Pet. App. 15a — can readily be described as “sensitive places” within the meaning of Heller. At a minimum, they implicate specific public safety interests, and their “circumstances justify reasonable measures to secure public safety.”

In a 16 page brief, Verrilli and Breuer have stumbled into a serious logical blunder.  The brief argues that the Masciandaro case doesn’t implicate Second Amendment rights on a large scale, since this case involves only National Park land and any decision would effect only this specific regulation.  Recall from above that the initial argument straight out of the gate had to do with the specificity of this case and any decision thereto.

But the brief apparently feels that the Second Amendment implications are massive, arguing extensively that this case involves “sensitive” areas where large numbers of people are congregated.  On the one hand, this case is specific.  On the other hand, its implications are broad enough that the court should decide it later because public safety is at stake and the implications for any decision are far too broad.  This is fundamentally contradictory, as the case doesn’t fit the category for broad constitutional implications because of its specificity, but does so to such a degree that any reversal by the Supreme Court of Mr. Masciandaro’s conviction would imply carry rights in areas that the government would seek to prohibit.

This problem can be seen again in the way in which the brief argues for non-consideration by the Supreme Court.  On page 7 this case is noted as having “little importance” since the law has been reversed.  So it has been categorized as not implicating second amendment rights as a justification for dismissal.  Then on page 12, precedent is cited for rejecting cases with “underlying issues with such broad ramifications.”  The brief’s core argument is self-referentially incoherent.

Further Analysis

It is appropriate at this point to make some additional remarks about the brief that don’t go entirely to the core argument[s].  The brief is so poorly written that it is difficult to follow the flow of thought (if there is any).  It seems to revert at times to the leaky bucket approach to rhetoric.  First there is the judicial “now you see it, now you don’t” trick of intermediate scrutiny, and thus whether Second Amendment rights are implicated is irrelevant – but even if Second Amendment rights are implicated, the government has an interest in public safety that bears on this question – but even if we don’t, the law has been overturned anyway – and even if all of that isn’t true, the Supreme Court should wait to decide cases with such broad constitutional ramifications as this one – but any decision by the Supreme Court wouldn’t effect larger questions since the regulation only effected behavior on National Park Service land, so the Supreme Court should reject it from consideration since it is so specific.  And on and on, back and forth from page to page it goes, dizzying the reader like a ping pong match.

The brief is such a completely disconnected, randomized flow of consciousness paper that it leaves one without a sense of having been persuaded of much of anything except that it is a pleasing experience to stop reading it.  It places heavy weight on the notion that a loaded firearm is “surely more dangerous than an unloaded one.”  But this assertion is stated as axiomatic and lacks demonstration or evidence.  For most concealed handgun permit holders, trigger and muzzle discipline approaches religious fervor.  To be sure, the state has an interest in knowing that weapons owners (who have a permit to carry) know how to make their weapon function with no danger to anyone except an assailant.  Hence, a range test and firearms safety training (e.g., knowing where your target is and also what is behind your target) is part of the process to get the permit to carry.

But it is a juvenile and illogical leap simply to assert that a loaded firearms in the hands of trained, permitted individuals, is “surely more dangerous” than an unloaded one (as if weapons randomly discharge).  This is analogous to the argument in Heller 2 where D.C. continues with the ban of so-called “assault weapons.”  An analysis of mass shootings in the U.S. demonstrates rather conclusively that assault weapons do not deserve the approbation heaped upon them.  Similarly, in spite of the prediction of bloodshed in the National Parks by the Brady Campaign’s Dennis Henigan, based on a FOIA request I filed concerning violent crimes in National Parks after reversing the ban on loaded weapons, there is essentially no change in 2010, and firearms related incident continue to remain statistically insignificant.  Dennis Henigan was wrong.  But then so are many adjudications concerning firearms because they rely on arguments made mainstream by the likes of Dennis Henigan.

After arguing for a compelling government interest in public safety because of the threat of violence from loaded handguns, the brief all but stipulates to the contrary proposition by dumping the basis for their argument and asserting that a Supreme Court decision wouldn’t matter because the law had changed.  Note well.  The brief doesn’t argue for the Supreme Court to take up the case to justify their assertion that a loaded handgun is surely more dangerous than an unloaded one and hence the compelling interest in public safety makes such regulations just and right even if the court exonerates Seam Masciandaro (a position which they could have taken).  The brief argues that the Supreme Court should not take the case because there may be other cases in the future that also bear on the question.

There are several other things that can be gleaned from the brief.  First, it is clear that neither the appeals court judges nor the authors of the brief have any significant personal experience with firearms.  No one with personal experience would make such manifestly absurd, factually incorrect statements about firearms.  Second, it becomes clearer with this brief what the current administration thinks about Second Amendment rights (they are not friendly to the Second Amendment).  Third, the brief eventually seems to devolve into a whiny, nagging missive on the fact that the Supreme Court shouldn’t take the case of Sean Masciandaro because we, the administration, really don’t want them to.  And if that’s not enough, we really … really … really don’t want them to.

The case of Sean Masciandaro presents a perfect opportunity to establish once and for all that U.S. citizens have a right to self defense outside their home.  The home is a man’s castle, and castle doctrine has now become law in most states as it should be.  Thus the burden of proof is placed squarely where it should be, i.e., on the prosecution, and the burden is heavy and the bar high for cases of self defense inside the home.  Rightly so.  But while the burden may not be as high outside the home, that doesn’t mean that a citizen relinquishes the right to self defense when he leaves the confines of his domicile.

Life in the United States of America generally requires interaction with the balance of society, and the warp and woof of America involves rich and robust ideas on firearms ownership and the right to self defense.  It did at the founding of our country and that continues to this day.  There is no evidence that the majority of Americans feel that their rights cease and desist because there are other people around them.  In fact, the presence of others is precisely the circumstances under which self defense would be exercised.  Restriction of the right in circumstances where it is most likely to be required to be exercised doesn’t comport with the spirit of the constitutional guarantee.  Rather, it mocks it.  Neither, for that matter, does requiring Sean Masciandaro to separate his ammunition from his weapon, rendering it completely useless as a means of self defense, comport with the intent of the founders or the rights granted to us by God.  Judges and attorneys who have experience with firearms or even who care just a little about constitutional guarantees would know these things.

UPDATE: Reddit/r/guns link.

The Solicitor General, along with Lanny Breuer, has responded to the Petition for Writ of Certiorari before the Supreme Court by Sean Masciandaro’s attorney, Antigone Peyton, a case which I have discussed here and here.

I see a number of serious weaknesses and logical blunders in the brief that I intend to exploit in a followup analysis article.

In the mean time, if you wish, you may weigh in yourself in the comments with what you perceive to be the problems with the brief.  The Solicitor General’s brief may be found here.

The Washington Post editorial board droned on about a recent ruling concerning the District of Columbia “assault weapons” ban.

Last week, the judges — or, more precisely, two of them — delivered a pleasant surprise. Chief Judge Douglas Ginsburg and Judge Karen LeCraft Henderson upheld the District’s ban on “assault weapons” and high-capacity magazines — defined by the District as those holding more than 10 rounds of ammunition. Also upheld were certain provisions that require gun owners to register handguns. The decision was, in our view, correct in its conclusions and methodology.

The judges, as is common with constitutional issues, asked a series of questions: Are semiautomatic weapons and high-capacity magazines in “common use” or are they the type of weapon — think, sawed-off shotguns — that the Supreme Court has said is not covered by the Second Amendment because they are “not typically possessed by law-abiding citizens for lawful purposes”? Do the regulations infringe on the fundamental right to keep and bear arms for self-defense? How does any infringement of the individual right balance against the government’s interest in protecting public safety?

Gun registration, the judges ruled, is “deeply enough rooted in our history to support the presumption” that it is constitutional. The ban on semiautomatic long guns is permissible, they concluded, because it does not prohibit possession of “the quintessential self-defense weapon” — the handgun. Those who wish to keep a long gun for hunting or self-defense may legally own a non-automatic rifle or shotgun. The judges also rightly deferred to the District’s concerns over safety in banning high-capacity ammunition clips that “pose a danger to innocent people and particularly to police officers.”

The third panel member, Judge Brett Kavanaugh, would have struck down regulations banning semi-automatic long guns and requiring gun registration, but he would have asked a lower court to conduct more fact-finding on whether a ban on high-capacity ammunition clips passed constitutional muster. The right to keep and bear arms, he argued, should not be subject to the balancing test adopted by the majority. Because semiautomatic weapons and high-capacity magazines have been in common use, he argued, they should presumptively be deemed constitutional. But “common use” in this approach spells the end of common sense and quashes the ability of diverse jurisdictions to fashion laws that address specific safety concerns. As the majority opinion shows, Second Amendment rights can be respected without thwarting legitimate public safety goals.

The editorial board is referring to the case of Dick Anthony Heller, et. al., versus D.C. before the D.C. Circuit Court of Appeals, decided October 4, 2011.  This case follows on from the Supreme Court ruling in D.C. v Heller, decided June 26, 2008.  Dick Heller and others decided to appeal a D.C. court ruling that prohibited them from owning so-called “assault weapons” in D.C. due to local ordinances.  The SCOTUS decision in Heller, they claimed, made D.C.’s ban of these weapons unconstitutional.

The phrase “assault weapons” is, of course, deplorable because of its misleading connotations (weapons with rails for attachments such as tactical lights, forend grips, a pistol grip, collapsible stock, etc., are classified as “assault weapons due to these features).  More deplorable is the complete ignorance of the subject in the MSM, especially when they decide to weigh in on the issue.  But more deplorable still is when judges make life-altering decisions based on factually incorrect information, in total isolation from any personal knowledge of the subject upon which they are supposed to adjudicate.  Such is the case with the D.C. Circuit Court of Appeals in its latest foray into the unknown.

Much of the decision is occupied with the two judges arguing for intermediate scrutiny as opposed to strict scrutiny as to whether second amendment rights are implicated by the D.C. ban.  But it doesn’t take long for the decision to become muddled.  On page 30 they state:

We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

Here is the perhaps the only correct set of assertions contained in the ruling, and the Washington Post has gotten it exactly backwards.  The judges didn’t base the ruling on whether assault weapons are in “common use.”  They clearly are.  But the rejection of this framework contained within Heller isn’t comprehensive or final, as we’ll see in a moment.

On page 33 of the decision, the judges begin to construct their own framework for rejection of assault weapons and exoneration of D.C.’s ban.    They turn their focus on D.C.’s “Committee on Public Safety,” the findings in their report, and whether the ban has a reasonable “fit,” tailored to the goals of public safety and reducing violent crime.  The committee relied upon An Updated Assessment of the Federal Assault Weapons Ban:Impact on Gun Markets and Gun Violence, 1994-2003.  The report does make the claim that “AWs and other guns equipped with LCMs tend to account for a higher share of guns used in murders of police and mass public shootings, though such incidents are very rare.”  But no evidence is offered to substantiate the claim (as we’ll see in a moment, there is none).

But there is sleight of hand.  By lumping police murders and mass shootings together, along with “assault weapons” and high capacity magazines (what they termed “large” capacity magazines, which I take to be rather outdated and not in colloquial usage), the authors get to make claims that are sweeping in nature while misleading in the details.  It only takes a single shot to murder anyone, including a police officer.  No one needs a high capacity magazine to pull off a murder.  But the ugly specter of “mass shootings” introduces the emotional element that the committee needs to make their case.

Then the judges return to the framework of Heller, after jettisoning it earlier, by referring to whether assault weapons are “dangerous and unusual” (see page 34).  After quoting Brian Siebel of the Brady Center as an expert witness, the judges conclude “In short, the evidence demonstrates a ban on assault weapons is likely to promote the Government’s interest in crime control in the densely populated urban area that is the District of Columbia.”  On page 35, the judges jump into bed with Siebel when they parrot his own words.

The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.” Moreover, the Chief of Police testified the “2 or 3 second pause” during which a criminal reloads his firearm “can be of critical benefit to law enforcement.” Overall the evidence demonstrates that large-capacity magazines tend to pose a danger to innocent people and particularly to police officers, which supports the District’s claim that a ban on such magazines is likely to promote its important governmental interests.

This is highly problematic prose, not only for the facts it claims to exist (“dangerous in self-defense situations”), but also for the light that it casts on the decision process.  The judges have earlier jettisoned Heller’s framework for weapons that are unusual by observing that the AR style weapons are not at all unusual, then reintroduced Heller’s framework in their decision by arguing that these weapons are “unusual and dangerous,” changed the framework again by arguing that the basis for the decision is public (police) safety, and then modified their argument again to introduce their concern for people involved in self-defense and those around them.

The rest of the decision is just as muddled as the foregoing was, and it is appropriate at this point to make several observations concerning some of the alleged facts upon which the court has based its decision.

It can be argued that not only is the 5.56 mm round and the AR style weapons a legitimate home defense weapon, it is in some circumstances the optimal one to use.  The District of Columbia and the judges find themselves in the uncomfortable position of saying that it is acceptable for citizens to possess a long gun shooting the 7.62 mm round, as long as it doesn’t have a collapsible stock, forend grip, or rails for lasers or lights (after all, we wouldn’t want individuals to be precise in their self defense, or perhaps we do because of the safety of others around them).  Or, substitute here a shotgun, even shooting slugs for self defense.  Yet one feature of the 5.56 mm round shot from any AR is that brick (and in fact multiple layers of drywall) shatter the round, turning it into shrapnel due to its tendency to yaw upon impact (and even during flight).  Thus, people in adjacent homes are at least as safe with the AR as they are with any shotgun, and they may be more safe.  The same holds true for rounds fired from pistols (from 9 mm and above in caliber).  Pistol rounds penetrate more layers of drywall than 5.56 mm rounds.

As for the testimony of law enforcement officials, it’s always easy to find a police chief or sheriff who wants to rid his area of all weapons.  Concerning the recent ban on open carry in California, Los Angeles County Sheriff Lee Baca said “For law enforcement officers and community members, any type of weapon being carried, openly or concealed, could appear as a threat to their well-being and is regarded as a public safety threat.”

Note what was said.  The subject was open carry, and not only does the Sheriff not like open carry, he doesn’t approve of concealed carry either.  It is regarded as a “safety risk.”  But risk in this context is defined by him, as a policy matter, representing police officers, rather than innocent citizens looking to do nothing more than defend their person in the case of peril.

But if assault weapons aren’t really dangerous in self defense situations as the Brady Center (and the court) claims, what about this notion that they (whether long guns or high capacity magazines used for handguns) represent a danger to public safety because of the threat of mass shootings?  This is the real bogey man lurking behind the curtain after all of the other reasons are given, reasons that appear to be like so many leaky buckets slammed together, and it makes sense to assess the history of mass shootings in America.  I have provided some of the details in Mass Shootings in the U.S. (HPS).

Disclaimer and stipulations: (1) I have tried to include all known mass shootings in recent history, but the list may not be comprehensive, (2) Number of deaths excludes suicide by the shooter, (3) Some information is marked unknown, (4) the list is in no particular order, and finally, (5) I have followed no specific definition of “mass shooting,” except that no attempt has been made to capture individual murders or even double-murders.

As Robert Farago observes, there is no single, equivalent definition of high capacity magazine.

California, Hawaii, Massachusetts, New York, Oak Park, Illinois – 10 cartridge limit
Chicago, Illinois – 12
New Jersey, Aurora, Illinois; – 15
Franklin Park, Illinois – 16
Maryland – 20
Denver, Colorado: – 21
Riverdale, Illinois – 35

Thus the Violence Policy Center has used a gratuitous definition that improves their chances of making compelling literature.  The definitions are not particularly useful, however, since I have tried to provide what is publicly available.  Moreover, analysis of the data provided in Mass Shootings in the U.S. (HPS) gives some insights that call into question the usefulness of generalizations and categories.

First, there simply haven’t been that many mass shootings in the U.S.  There aren’t enough to be statistically significant, but anecdotal wisdom can nonetheless be gleaned from the data.  Second, the charge that assault weapons are somehow the weapon of choice, or are involved in increasing proportions in mass shootings, is simply false.  The data shows that handguns are involved at a rate of 4:1 compared to either shotguns or rifles of any kind.

Third, the most frequent choice for such shooters in order to achieve effectiveness seems not to rely on magazine capacity, but having multiple weapons and magazines.  Fourth, the highest number of deaths occurs in instances of handgun use, not AR or AK use.  Fifth, determined and well-prepared shooters, e.g., the Texas tower murders, can use bolt action rifles to wreak carnage without the accouterments of the “assault weapon” label.  Sixth, most shooters carried multiple magazines, and seemed to be capable of fairly rapid magazine changeout.  In fact, given the ability to perform this action quickly, it isn’t obvious that use of magazines of different capacity would have substantially changed the calculus for any of the incidents.  The Fort Hood shooter used a high capacity magazine for his FN Five-Seven, but he also performed magazine changeout.  He didn’t stop shooting until he was himself shot.  It isn’t apparent that more magazine changeouts would have changed the outcome of the incident.

While correlation isn’t causation and no conclusive judgments may be made from this data due to the limited quantity of the set, this is true in the superlative for those who would try to use it to demonstrate in the legal system that so-called assault weapons are more dangerous than any other type of weapon or are involved in more crimes.

The D.C. Circuit Court of Appeals ruling continues to amuse at it goes on.  Eventually the court parrots the words of the ATF concerning the lack of a sporting purpose for assault weapons, a cultural framework that is dated by at least twenty five years.  I pointed this out in Analysis of the ATF Study on the Importability of Certain Shotguns.  Mentioning the Saiga-12 competitions or the local 3-Gun competitions should be enough to cause the authors to go back to the drawing board and craft up-to-date language and regulations (or better yet, simply reverse the regulatory trend of micromanagement).  The ATF language is simply outmoded, incorrect and useless.

But hysteria over assault weapons causing bad judicial outcomes isn’t the only problem.  In the Southern district of New York, Judge Cathy Seibel has ruled that possession of a firearm of any kind outside of the home is a privilege rather than a right.  Continuing with this theme, Sean Masciandaro fell asleep in his car while resting from a long drive, and this happened to occur on National Park land.  He was arrested for failing to remove the ammunition from the proximity of his weapon and place it in a remote location such as the trunk of his car (as if the weapon would have been any protection for him unloaded).

The attorneys for Sean argue thusly.

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. 9 For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

Heller was a muddled decision and at least placed language in effect that justified the micromanagement of weapons types (with the statement that the “handgun is the quintessential self-defense weapon,” it sounds as if Antonin Scalia has been watching too much television).  But if Heller was muddled, the D.C. Circuit Court of Appeals (and other courts throughout the nation) have made the problem an order of magnitude larger, with incoherent arguments, factually incorrect statements, lack of personal knowledge of firearms, and reliance on “experts” who are known to be duplicitous and ignorant of the subject.  We can forgive editorial boards.  After all, they wax eloquent in ignorance all the time on all kinds of things.  Courts cannot be forgiven.

According to the D.C. Circuit Court of Appeals, the D.C. assault weapons ban is based on something other than those weapons being unusual since there are hundreds of thousands of them in circulation.  But not really, because they are unusual and dangerous weapons, and the real concern has to do with the safety of police officers, until the public is mentioned, because their protection is paramount.  And if all of that doesn’t work, the big bad bogeyman of “mass shootings” should be enough to convince the reader that they should be banned.  It’s just a horrible decision that wouldn’t make the grade in any college writing class.

And worse?  The Supreme Court bought all of that and refused to hear Heller’s appeal.  The Supreme Court has one more chance to get it right this term with the case of Sean Masciandaro.  If they don’t, Heller will be nothing more than a right to possess a weapon inside the home, and the second amendment will have been eviscerated.

UPDATE: I appreciate the links give to this article by Say Uncle and David Hardy at Of Arms & the Law.