Archive for the 'Second Amendment' Category

Bill Keller wants to get down and dirty into the weeds of the candidate’s faith.  I’ll let you read his list of questions if you want, but of particular interest to me was this one posed to Michele Bachmann.

You have said that watching the film series “How Should We Then Live?” by the evangelist Francis Schaeffer was a life-altering event for you. That series stresses the “inerrancy” ­— the literal truth — of the Bible. Do you believe the Bible consists of literal truths, or that it is to be taken more metaphorically?

Good grief.  Keller isn’t educated enough even to pose the question the right way.  As he has posed it he blunders into the fallacy of the false dilemma.  Let’s see if I can help out.  Any thinking Christian has to answer Keller’s question, yes and yes.  It is both-and, not either-or.

The Bible contains simile, metaphor (which is extended simile), allegory, data and facts, parables (Jesus taught us in stories), wisdom literature (Psalms and Proverbs, Song of Solomon) and so on and so forth.  Different rules of hermeneutics must be followed based on the kind of literature.  Isaiah 46:9-10 and Ephesians 1:4-5,11 must be taken quite literally.  The book of Daniel, quite obviously, is comprised of much that has to be taken figuratively.

If Keller is referring to whether one believes in the historicity of miracles, then he should have posed the question specifically that way.  Asking whether one believes in the inerrancy of the Bible is, equally stolid and incomplete.  The Christian doctrine pertains to the infallibility of the autographs.  These kinds of things – hermeneutics, doctrine – are taught in classes usually held in places such as seminaries.  Keller might want to attend one before he tries to play ball in the major league again.  He struck out this time.

But I’m glad that Keller opened up the floor for discussion.  Now it’s my turn.  Mr. Keller is no defender of the second amendment, and the New York Times is usually considered to be the enemy of gun ownership.  Very well.  Here is the set of questions for Keller.

Do you believe in individual gun ownership?  If you don’t, is it based on a belief that mankind is too variable and prone to fits of rage to prevent himself from being a danger to those around him?  Depending upon the answer to this last one, there are two followup questions.  If the answer is yes, then please explain the moral flaw in your character that makes you this way.  If the answer is no, then please explain to us why you would relinquish a tool that could be used to defend your family and loved ones from danger and death if in fact your are not susceptible to this moral flaw (also explain why this moral flaw affects everyone else but not you).  As a related issue, why would you force others to relinquish these same tools to defend and protect their loved ones unless you were certain that they too suffered from moral flaws.  Finally, if you do not believe in any system of faith at all, please explain your conception of this moral flaw.  What is a moral flaw?

I’m glad that we could have this conversation.  I look forward to your responses.

David Savage with The LA Times:

The 2nd Amendment’s “right to keep and bear arms” is proving to be a right to keep a gun at home, but so far not a right to bear a loaded firearm in public.

The Supreme Court breathed new life into the amendment when it struck down strict handgun bans in Washington and Chicago and spoke of the “inherent right of self-defense.”

But to the dismay of gun rights advocates, judges in recent months have read those decisions narrowly and rejected claims from those who said they had a constitutional right to carry a loaded gun on their person or in their car. Instead, these judges from California to Maryland have said the “core right” to a gun is limited to the home.

Now, the National Rifle Assn. is asking the high court to take up the issue this fall and “correct the widespread misapprehension that the 2nd Amendment’s scope does not extend beyond the home.”

Stephen Halbrook, an NRA lawyer, said “some judges have buried their heads in the sand and have refused to go one step further” than saying there is a right to have a gun at home.

The Brady Center to Prevent Gun Violence hailed the trend and called the high court’s rulings a “hollow victory” for gun enthusiasts. “The gun lobby has tried to expand [the 2nd Amendment] into a broad right to carry any type of gun anywhere. And they have been almost unanimously rejected by the courts,” said Jonathan Lowy, director of legal action. He conceded, however, that “this battle is far from over.”

The uncertainty began with the Supreme Court itself. In 2008, Justice Antonin Scalia said the history of the 2nd Amendment shows it “guarantees the individual right to possess and carry weapons in case of confrontation.” But other parts of his 5-4 opinion stressed there is no right to “carry any weapon in any manner,” and that bans on “carrying concealed weapons were lawful” in the 19th century.

Since then, hundreds of lawsuits have been filed to challenge gun restrictions. In California, federal judges in San Diego and Yolo counties rejected suits from law-abiding gun owners who were denied “concealed carry” permits.

“The 2nd Amendment does not create a fundamental right to carry a concealed weapon in public,” U.S. District Judge Morrison England ruled in May.

“That’s the cutting-edge issue: whether the 2nd Amendment applies outside the home,” said Chuck Michel, an NRA lawyer in Long Beach who has appealed the question to the U.S. 9th Circuit Court of Appeals.

State judges in Illinois, Maryland, Massachusetts and New York have also ruled recently that there is no constitutional right to carry a loaded gun for self-defense. And in Virginia, the U.S. 4th Circuit Court of Appeals upheld the federal conviction of a man who fell asleep in his car near Washington’s Reagan National Airport with a loaded gun.

So what is Savage talking about?  The best summary statement can be found directly in the Petition for Write of Certiorari to the Supreme Court on behalf of Sean Masciandaro.

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.

So there are massive problems with Heller and McDonald.  While I am a huge fan of Justice Scalia, he let America down on the issue of gun rights.  Heller was too narrowly decided.  To be sure, there is a second amendment right, and it applies to individuals, personally, and not just in the home, but everywhere else as well.  I see bans on concealed carry, bans on high capacity magazines (e.g., California), bans on firearms based on type or function, bans on carry in places of worship, and so on, in the same category.  They all violate the Second Amendment.

The lower courts’ confusion is simply because they are confused.  The Supreme Court shouldn’t have to spell it out that this extent.  But moderately vague language in the SCOTUS decisions, progressive tendencies among the judiciary, and laziness of the American people to assert their constitutional rights, have led us to the point again where the stolid judges, lawyers, politicians and law enforcement officials everywhere must be told that Americans have a God-given right to self defense, at all times, in all circumstances, and by any means.

Dennis A. Henigan, acting President of the Brady Campaign, waxes breathless in his most recent hysterical rant at Huffington Post.

Remember two summers ago when most Americans were appalled by the sight of guns openly carried by protesters at presidential speaking events and town hall forums on the health care issue? Now it’s not just the protesters bringing guns to political events. Now it may be the candidates themselves.

Texas governor and newly-announced presidential candidate Rick Perry has taken the incendiary mixture of guns and politics to a new level. When it comes to carrying concealed weapons, Perry certainly walks the walk. He has a concealed carry permit and proudly says that he carries a gun when he is out jogging.

Briefly commenting at this point, I’ll observe that I don’t ever recall in my entire life being appalled at the sight of weapons being carried by anyone, at any time.  But as for the concealed carry of weapons while jogging, I guess I have to weigh in with Henigan on this one.  I don’t jog.  I do lift weights and engage in open carry while I’m walking my dog.  But continuing:

Perry recently was asked if he is armed while campaigning. He didn’t respond by saying the question is ridiculous. He didn’t say that in the close quarters of a rope line, with a multitude of people pulling and tugging at him, a gun could easily drop to the ground or be taken from him. He didn’t say that an armed candidate would be a nightmare for the Secret Service. He didn’t say any of those things. Instead, he smiled and refused to say whether or not he carried while campaigning. He added, “That’s why it’s called concealed.”

Rick Perry apparently doesn’t think the question is ridiculous. In fact, his sarcasm suggests he has no objection to political candidates carrying guns to campaign events; he seems to imply that he may do so himself. One thing is clear. The governor has been so thoroughly marinated in pro-gun ideology that he is unashamed about taking it to its logical extreme. If it is true that more guns in public places make us safer, why shouldn’t political candidates carry guns? Isn’t it the least they can do for their own safety?

Something tells me that Perry wouldn’t be ashamed of taking gun ownership to its logical end, whether Henigan wants to call that “extreme” or not.  But Henigan is getting increasingly worked up and hysterical over things, and he eventually drops this bomb.

Yes, it is a good thing that senators can’t carry guns onto the Senate floor because the presence of guns, even carried by well-meaning, law-abiding citizens, increases the risk that arguments and conflicts will escalate to lethal violence. It is the same reason that our national parks are less safe because (due to legislation sponsored by Senator Coburn himself) concealed carry of weapons is now permitted within their borders.

There you have it.  There in a nut shell is the Faustian bargain that gun control advocates are willing to make.  They don’t really believe that an individual cannot protect him or herself or family with a weapon.  They don’t really believe that an individual is less safe with a weapon, regardless of what they might claim.  What they believe is that there is a greater good to be served, and that greater good lies in not allowing provocations to escalate into deadly incidents.  It’s their solution to original sin.  Allow weapons and violence escalates.  Remove weapons and utopia flourishes.

But even here, Henigan cannot help but spuriously link an article that does nothing more than report that weapons are now legal in national parks.  He claims that our national parks are less safe than they were because of this new latitude.  And the article has nothing to do with this claim.

Oh, but he has no evidence.  In fact, I do.  Several months ago I completed a FOIA request to the national parks service, and they returned to me an Excel spreadsheet with crimes outlined by type and delineated per year in the national parks.

11-409 Smith NPS&USPP LE CRIME REPORT 1995-2010

It doesn’t show what Henigan wants it to.  In fact, our national parks are not less safe than they were prior to 2010 when firearms were made legal.  And I did research most of the homicides (through local news accounts) and they mostly have to do with situation-specific (and sometimes bizarre) incidents involving individuals who had no right to carry a firearms anywhere because they were convicted felons, or prisoners on the run, or other such exigencies.  Not one incident that I researched had to do with an otherwise law-abiding citizen who suddenly went berserk because he had a gun in a national park.

Myths die hard.  They are usually built on lies, and Henigan and the Brady Campaign freely traffics in them.  Something as simple as a FOIA request can usually dispel silly myths like this one, and yet we know of at least one instance in which a man’s life was saved from a bear attack because of the new rule in national parks.  He used a .45 handgun to drive the bear away.  I’ll side with the new rule and gun ownership any day.

Remember the Canton, Ohio, police officer who went berserk over a concealed carry issue, threatening to “blast” a guy “in the mouth” and caving in his “Goddamn head?”  Remember the background?  Bigmouth police officer (Daniel Harless) wouldn’t allow the citizen to get the words out that he had a concealed carry weapon.

Well, the president of the Canton city council recently went on a rant over concealed carry.  Listen below.

Oh my.  Guns.  In high crime areas.  Sounds like a recipe for disaster as Councilman Schulman says.  We can’t have armed citizens running around in high crime areas.  To be sure, Councilman Schulman supports hunters, but that idea of an armed population (you know, as found in the constitution) is to blame for the danger we face.  Guns cannot possibly help any of us to be safer.

I’ll give the Councilman one thing though.  He has a special dislike for Rugers at 0130 hours.  Okay, I’ll compromise.  I promise to never carry a Ruger at 0130 hours.  I’ll carry something else if I happen to be out at that time (not likely), but it’ll never be a Ruger.  Maybe that will help assuage the Councilman’s anger over this.

The Daily Caller quotes a staffer for Congressman Darrell Issa as saying that the Gunrunner investigation points much higher than acting director Kenneth Melson.

Even if Melson resigns, Issa spokesman Frederick Hill said the Committee expects to find much more and continue with investigations. “The investigations are far from over,” Hill told TheDC. “It’s quite certain that Kenneth Melson was not the principal architect of this plan nor was he the only high-ranking official who knew about and authorized this operation.”

As I have pointed out before, their own documents say that the White House knew about the strategy.  So this goes higher than even the Department of’ Justice.  That’s why it isn’t for Kenneth Melson simply to resign.  A special prosecutor is needed to get to the bottom (and top) of this crime.  There is apparently pushback from Melson, who believes he has done nothing wrong.  But it isn’t okay for the ATF to violate the National Firearms Act or the Arms Export Control Act if I must live within its stipulations.

And while we’re focused on this issue, the unrepentent Obama administration is busy going from bad to worse.  Andrew Traver, Obama’s pick to head the ATF, is scheduled to meet with Justice this week.  The NRA strongly opposes the appointment of Traver, and for good reason.  He is associated with the leftist Joyce Foundation’s Study, Taking a Stand: Reducing Gun Violence in our Communities.  Among other ridiculous things, they advocated that the Centers for Disease Control take a role in the regulation of the firearms industry.

This administration sees this as an opportunity to slip in their man at the ATF, and it’s time to gear up for the next anti-firearms battle that Obama wants to wage.

UPDATE #1: The NYT has done their expected puff piece shilling for Senator Feinstein, et. al.

If Congressional Republicans are really intent on getting to the bottom of an ill-conceived sting operation along the border by the Bureau of Alcohol, Tobacco, Firearms and Explosives, they should call President Felipe Calderón of Mexico as an expert witness.

Mr. Calderón has the data showing that the tens of thousands of weapons seized from the Mexican drug cartels in the last four years mostly came from the United States. Three out of five of those guns were battlefield weapons that were outlawed here until the assault weapons ban was allowed to lapse in 2004. To help him stop the bloody mayhem, he is pleading with Washington to re-enact the ban and impose other needed controls.

Such horrible analysis work!  They are propagating the 90% myth, just as did the St. Petersburg Times.  And just like Bono.  That’s what happens when opinion gets in the way of facts.  But at least the NYT has more people on staff than Bono to cipher the data, and so while Bono might be just responding emotionally, the NYT is showing how shoddy and lazy they have become in their analysis.

Prior:

Replacing Kenneth Melson At ATF Is Not Enough

The Deepening Project Gunrunner Scandal

Senators Feinstein, Schumer and Whitehouse on Halting U.S. Firearms Trafficking to Mexico

Project Gunrunner: White House and DoJ Knowledge and Oversight

According to the WSJ, acting director Kenneth Melson’s head may be on the chopping block over the AFT gunrunner scandal.

The Justice Department is expected to oust the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to people familiar with the matter, amid a troubled federal antitrafficking operation that has grown into the agency’s biggest scandal in nearly two decades.

Moves toward the replacement of Kenneth Melson, acting ATF director since April 2009, could begin next week, although the precise sequence of events remains to be decided, these people said.

The shakeup shows the extent of the political damage caused by the gun-trafficking operation called Fast and Furious, which used tactics that allowed suspected smugglers to buy large numbers of firearms. Growing controversy over the program has paralyzed a long-beleaguered agency buffeted by partisan battles. The ATF has been without a Senate-confirmed director since 2006, with both the Bush and Obama administrations unable to overcome opposition from gun-rights groups to win approval of nominees.

In November, President Barack Obama nominated Andrew Traver, the head of the ATF’s Chicago office, as permanent ATF director. The nomination stalled in the Senate after the National Rifle Association said Mr. Traver had a “demonstrated hostility” to the rights of gun owners.

Mr. Traver is set to travel to Washington on Tuesday to meet with Attorney General Eric Holder and Deputy Attorney General James Cole, the people said. The administration is weighing whether to name Mr. Traver as acting director or choose another interim chief while awaiting Senate action on his nomination, they said.

The administration is attempting to handle three issues with one move.  First, the Obama administration is attempting to salvage what it can from the horribly failed project gunrunner and throw out a sacrificial lamb to the Congress.  We all know this.  Second, they are attempting to conduct another battlefield ruse.  This is merely a flanking action designed to help stop the Congressional frontal assault on the administration and justice department.  The WSJ article quotes Jim Carney again denying that Mr. Obama knew anything about the project.  But there is indication that there was understanding and approval not only from the justice department but also from the White House.  How high does the knowledge go?  Who knew about this in the White House, and when did s/he know it?  A special prosecutor is needed to flesh out these details.  It simply isn’t acceptable to throw Kenneth Melson under the bus and walk away from this.  Accountability must start at the very top and go to the very bottom of the chain of command on this.

Third – and perhaps more significant than any of these goals – the administration sees this as a timely opportunity to slip in Andrew Traver to the ATF.  Andrew Traver’s views are extreme, and he even wants the Centers for Disease Control to have oversight of the firearms industry.  If the administration cannot get what they wanted out of gunrunner, they intend to install someone else even more anti-firearm than Melson at the head of ATF.  Not only is there no repentance for sins committed, there isn’t even the hint of an attempt to change.  Several dead ATF agents and Mexican authorities, Melson thrown under the bus, a Congressional investigation, international embarrassment, and firearms flooding Mexico from this whole ugly affair – they are all just a few “broken eggs” for real change this administration intends to bring.

Prior:

The Deepening Project Gunrunner Scandal

Senators Feinstein, Schumer and Whitehouse on Halting U.S. Firearms Trafficking to Mexico

Project Gunrunner: White House and DoJ Knowledge and Oversight

Background

We all know about Project Gunrunner, as it is formally called by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).  We also know about the scandal it has been and is steadily becoming, with Congressional hearings pending and the bureau still stonewalling and using delaying tactics over Congressional inquiries.  We don’t know yet what will come of the hearings, but the BATFE and administration support troops have tipped their hand concerning their strategy.

Senators Dianne Feinstein, Charles Schumer and Sheldon Whitehouse have issued a report entitled Halting U.S. Firearms Trafficking to Mexico.  Within a few days of releasing this study, The Washington Post and CNN parroted the talking points in respective articles.  The study itself is as remarkable for the misrepresentation of the facts concerning firearms trafficking to Mexico as it is for its recommendations for statutory remedies.

Analysis & Commentary

Before discussing the Feinstein recommendations it’s necessary to rehearse the demolition that Scott Stewart at STRATFOR performed of the myth that 90% of the weapons seized in Mexico were of American origin.

For several years now, STRATFOR has been closely watching developments in Mexico that relate to what we consider the three wars being waged there. Those three wars are the war between the various drug cartels, the war between the government and the cartels, and the war being waged against citizens and businesses by criminals.

In addition to watching tactical developments of the cartel wars on the ground and studying the dynamics of the conflict among the various warring factions, we have also been paying close attention to the ways that both the Mexican and U.S. governments have reacted to these developments. Perhaps one of the most interesting aspects to watch has been the way in which the Mexican government has tried to deflect responsibility for the cartel wars away from itself and onto the United States. According to the Mexican government, the cartel wars are not a result of corruption in Mexico or of economic and societal dynamics that leave many Mexicans marginalized and desperate to find a way to make a living. Instead, the cartel wars are due to the insatiable American appetite for narcotics and the endless stream of guns that flows from the United States into Mexico and that results in Mexican violence.

Interestingly, the part of this argument pertaining to guns has been adopted by many politicians and government officials in the United States in recent years. It has now become quite common to hear U.S. officials confidently assert that 90 percent of the weapons used by the Mexican drug cartels come from the United States. However, a close examination of the dynamics of the cartel wars in Mexico — and of how the oft-echoed 90 percent number was reached — clearly demonstrates that the number is more political rhetoric than empirical fact.

As we discussed in a previous analysis, the 90 percent number was derived from a June 2009 U.S. Government Accountability Office (GAO) report to Congress on U.S. efforts to combat arms trafficking to Mexico (see external link).

According to the GAO report, some 30,000 firearms were seized from criminals by Mexican authorities in 2008. Of these 30,000 firearms, information pertaining to 7,200 of them (24 percent) was submitted to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for tracing. Of these 7,200 guns, only about 4,000 could be traced by the ATF, and of these 4,000, some 3,480 (87 percent) were shown to have come from the United States.

This means that the 87 percent figure relates to the number of weapons submitted by the Mexican government to the ATF that could be successfully traced and not from the total number of weapons seized by Mexican authorities or even from the total number of weapons submitted to the ATF for tracing. In fact, the 3,480 guns positively traced to the United States equals less than 12 percent of the total arms seized in Mexico in 2008 and less than 48 percent of all those submitted by the Mexican government to the ATF for tracing. This means that almost 90 percent of the guns seized in Mexico in 2008 were not traced back to the United States.

The most recent data that Feinstein cites, given to her by the BATFE, makes the same observation of the data, and that, by acting director Kenneth Melson.

There are no United States Government sources that maintain any record of the total number of criminal firearms seized in Mexico.  ATF reports relate only to firearms recovered in Mexico that were subsequently traced by ATF based upon firearms identifiers submitted to ATF by the Mexican government.  The Mexican government does not submit every recorded firearm to ATF for tracing …

Which point therefore makes the conclusions one can draw from the data very limited.  But that’s not how the Feinstein report paints the picture.  Right in the background statement, we read that “In a June 2009 report, the Government Accountability Office stated that around 87% of firearms seized by Mexican authorities and traced over the previous five years originated in the United States.”  The Washington Post was quick to pick up on the deconstructed meme, saying that “Of the 29,284 firearms recovered by authorities in Mexico in 2009 and 2010, 20,504 came from the United States, according to figures provided to the senators by the Bureau of Alcohol, Tobacco, Firearms and Explosives.”  This is clearly not factually correct, as many more firearms were seized by the Mexican authorities than 29,284.

In testimony to the dictum that if you repeat a lie enough times it will eventually be taken as truth, the 90% myth is now mainstream, and I have called out The St. Petersburg Times for relying on the myth for their editorials (with no response).  Senators Feinstein, Schumer and Whitehouse must be relying on the same dictum, because their wish list of increased firearms control measures is so expansive and draconian that it seems ridiculous to have connected all of this to a single effort.  The senators recommend:

1. Closing the so-called gun show loophole in the laws.
2. Redoubling efforts to enforce an import ban on weapons that fall into the category of military style weapons (e.g., with features such as pistol grip, forend grip, rails for tactical lights, high capacity magazines, etc.).  I have previously covered and commented on this ATF effort for shotguns.
3. Reinstating the assault weapons ban.
4. Multiple sales reporting to the federal government.
5. Ratification of the The Inter-American Convention Against the Illicit Manufacturing of and Trafficking of Firearms, Ammunition, Explosives and Other Related Materials (CIFTA).

And the justification for all of this?  Earlier in the report, Feinstein and staff discuss the laudable job that the ATF did with project gunrunner, but lament the fact that it alone cannot curb the trafficking of firearms to Mexico.

And now the loyal troops tip their hands.  To be sure, for a progressive, any increase in the power of government is a good thing.  All societal problems stem from a lack of regulation and oversight, all evil has its solution in more laws.  So the senators (and the administration) want what they can get out of this effort, if anything.  But something in the wind is foul.

With the coming Congressional investigations of project gunrunner and the illegality and inappropriateness of such a program, the administration and its troops see vulnerability.  Senators Feinstein, Schumer and Whitehouse are snipers picking at the advancing Congressional column with enfilade fire.  This effort is likely a decoy, a hastily designed effort to squeeze what they can from the failed gunrunner project, protect their flanks and split the advancing column.

Second amendment advocates must be diligent, and Senator Feinstein’s efforts should be monitored, analyzed and opposed.  But the real purpose of this report and its recommendations is to be a battlefield ruse.  With its lack of substantiation of the data, the lack of a basis for the recommendations, and the lack of analysis of the information, it’s as much of an admission of vulnerability and culpability as it is a last gasp effort to deny second amendment rights to American citizens.

Prior:

Project Gunrunner: White House and DoJ Knowledge and Oversight

Analysis of ATF Study on the Importability of Certain Shotguns

Legislation on High Capacity Magazines

Cost Cutting Ideas for the Federal Government

In what is uncustomary for an opinion and analysis journal like this one, I’m going to come out and flatly say that I don’t fully understand what’s going on behind the scenes.  Mitch McConnel (and other GOP senators) came out against Rand Paul’s amendment to the patriot act renewal.

Adding further confusion for me, the NRA weighed in against the amendment as well.  But expecting a clear outline of the reasoning process behind the NRA’s disagreement, I am treated to this bit of subterfuge.

As often happens with complex issues, NRA’s position on Sen. Rand Paul’s defeated PATRIOT Act amendment is being mis-reported by those who either don’t understand the facts, or prefer their own version of “facts.”

This amendment was rejected by 85 Senators, which included many of the strongest Second Amendment supporters in the U.S. Senate.  Unfortunately, Senator Paul chose not to approach us on this issue before moving ahead. His amendment, which only received 10 votes, was poorly drafted and could have resulted in more problems for gun owners than it attempted to fix. For this reason, the NRA did not take a position on the amendment.

To be more specific about the amendment and its problems, the amendment would have prohibited use of PATRIOT Act legal authority for any “investigation or procurement of firearms records which is not authorized under [the Gun Control Act].” There have been no reports of the current PATRIOT Act being abused with respect to firearms records, however supporters suggested a far-fetched scenario in which every firearms sales record in the country–tens or hundreds of millions of documents dating back to 1968–could be sought.  Again, we nor anyone else is aware of any case in which this authority has been used to abuse gun owners.  (In fact, published reports indicate that few of these orders are ever sought for any reason.)

In particular, the amendment appeared to be aimed at so-called “section 215 letters”–orders from the FBI requiring the disclosure of “tangible things” such as records and documents.

Under the current PATRIOT Act, an application for this type of order with respect to firearms sales records has to be approved no lower than the director or deputy director of the FBI, or the Executive Assistant Director for National Security.  The application is made to a federal judge based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”  The judge has the power to modify the order and must direct the use of “minimization procedures” to protect the privacy of Americans.

If the Paul amendment were adopted, the FBI would have used other ways to access whatever firearms records it might need for intelligence or anti-terrorism investigations. This is especially troublesome for gun owners.

This would result in United States Attorneys simply demanding the same records through grand jury subpoenas, which require no judicial approval before issuance. Fighting a subpoena after the fact can be very costly and carries legal risks of its own, including possible charges for obstruction of justice.

Even worse, the government would have used the Gun Control Act’s provision that allows the Attorney General to “inspect or examine the inventory and records of [a licensee] without … reasonable cause or warrant” during a criminal investigation.  That means by simply characterizing its activities as a “criminal investigation,” it would enter a licensee’s premises and demand these records without “reasonable cause or warrant”–in other words, without judicial oversight of any kind, and without any of the procedural limits imposed by the PATRIOT Act.

Therefore, given all of these potential problems for gun owners, the NRA could not support this poorly drafted amendment.

What?  Come again?  Can someone please try to remove the confusion and contradictions in Chris Cox’s statement for me?  This makes no sense to me.  I’m left to concur with Sean at SayUncle.  “I’m scratching my head on a few points. Can someone give a high level play-by-play on this?”

What did Paul’s amendment do?  Why did Mitch McConnell disagree with it?  Why did the NRA demur?  Were the reasons compelling and persuasive?

From Jeff Winkler at The Daily Caller:

Recently introduced federal gun legislation would codify and greatly expand the definition of those barred from owning a gun because they suffer from broad, umbrella-like definitions of mental health problems. Mental health advocates, however, say legislators reacting to “deranged” people going on shooting sprees are “completely missing the point.”

Last week, New York Democratic Rep. Carolyn McCarthy introduced the Fix Gun Checks Act of 2011, a nearly-identical resolution to that introduced in the Senate in March by her New York colleague, Democratic Sen. Chuck Schumer. Both bills include a section dedicated to further codifying in federal law what it means to be “adjudicated as a mental defective.” The proposed change would label any person a “mental health defective” who appears to “lack the mental capacity to contract or manage his own affairs,” or is “compelled” to receive counseling or medication.

Other, seemingly more obvious, definitions of a “mental health defective” include anyone who has been found criminally insane, found incompetent to stand trial or found not guilty by reason of mental deficiencies.

According to the legislation, decisions of whether someone is of subnormal intelligence, competency and/or mental illness are to be decided by a “court, board, commission, or other lawful authority.” No medical qualifications or background in psychological sciences are specified as necessary for such lawful authorities.

A court, board, commission or lawful authority.  Right.  And as for people who have been on anxiety medication?  Or perhaps people who were diagnosed as ADHD who had been on ritalin at one time?  How about people who went to their pastor for marriage counseling?

I’ve said it before.  It’s ironic how illiberal some liberals can be.  There is actually nothing about so-called liberals that is liberal.  They are all statists and control freaks.  I have never met one who doubts that the state doesn’t have an answer for everything.  It can right every wrong, compensate every injustice, and prevent every evil.  A new law is apparently the answer for crimes with weapons, administered, adjudicated, supervised and applied, of course, by the man.  You know, that man that liberals say they hate so much?

In January of 2011 the Bureau of Alcohol, Tobacco, Firearms and Explosives authored what they call the Study on the Importability of Certain Shotguns.  The comment period ends on May 1, 2011, and my comments have been submitted to the pertinent e-mail address with name, address and other contact information.  My comments are herewith submitted to my readers.

It really is a sad state of affairs at the ATF.  With salient and pressing scandals that deserve attention (along with a need for a thorough house-cleaning and full disclosure by the ATF), lawyers and analysts have been focusing exquisite detail on the features that should be [dis]allowed on importable shotguns.

The ATF is working within the context of the decisions on the ban on assault rifles, a ban that had sunset provisions which are no longer applicable.  Features such as a pistol grip, a forend grip, a rail system for things such as tactical lights (light enhancing devices), high capacity detachable magazines, etc., are deemed to be associated with military style weapons and as such (in the determination of the ATF study team) are not “readily adaptable for sporting purposes.”

But this judgment is arbitrary, and I charge the ATF with circular reasoning.  Rather than appeal to facts which demonstrate whether a specific feature is adaptable for sporting purposes, the ATF study team apparently without reservation gives us the purpose around which their judgments are made, i.e., ensuring that the statutes codified in the Gun Control Act of 1968 remain useful.  As I observe in one comment:

On page 4 the following statements are made: “The 1989 study then examined the scope of “sporting purposes” as used in the statute. The study noted that “[t]he broadest possible interpretation could take in virtually any lawful activity or competition which any person or groups of persons might undertake. Under this interpretation, any rifle could meet the “sporting purposes” test. The 1989 study concluded that a broad interpretation would render the statute useless.”

Wrapped up in this paragraph we have not only an amusing logical blunder but also the real crux of the problem. Authors have presupposed the answer (so-called circular reasoning) at which they must arrive, i.e., the statute must remain useful. Thus, all interpretations by ATF are biased to yield that result. It is not the responsibility of the ATF nor is it within the purview of their authority to ensure the continued usefulness of a statute, if in fact it is rendered useless by advances, common practices, evolution in sporting, or lack of wise crafting of the statute (such as the fact that nowhere in this discussion of “sporting purposes” is there any latitude given for personal protection and home defense under the second amendment to the constitution of the United States). This single paragraph renders the study itself as useless as the statute has become.

As to the issue of the usefulness of military style features on weapons, I remark:

Ask any skeet shooter if s/he enjoys stopping every five shells and the answer makes for easy dismissal of authors’ objections to these features on firearms. Another example might be feral hog hunting, which usually occurs at night since these are nocturnal creatures. Feral hogs are destroying the American landscape, causing many farmers in the American South to go out of business, attacking household pets and even humans.  According to NFS and game control experts, they are multiplying more quickly than can be accommodated by lethal removal. Not only is feral hog hunting a sport involving guides and businesses specifically for that purpose, it may be necessary for lethal removal to be increased by an order of magnitude to save the American farmer.  Nocturnal hunting requires enhanced or tactical lights on Picatinny or Weaver rail systems, and hunting feral hogs might require high capacity magazines. Finally, note that some shooters have medical problems such as arthritis. Pistol and forend grips used for any sport and with any weapon can not only make the weapon less painful to use, it can make the difference between whether the shooter can engage in the sport at all. So with three examples (skeet shooting, feral hog hunting and medical problems) it has been demonstrated that the list of firearms features supplied by authors as not adaptable for sporting make the firearms more adaptable for sporting, and it is the proposed ATF regulations that are directly contrary to the practice of sporting. Many more such examples could be supplied.

I conclude the comments with this summary:

In general I find that the study [a] appeals to authority without citation of those authorities, [b] engages in circular reasoning in that conclusions are fixed at the outcome of the discussion (i.e., ensuring the continued usefulness of a particular statute), [c] is dated and out of touch with current practice, [d] ignores legitimate uses of certain weapon features for various sporting functions and activities, [e] fabricates arbitrary categories, [f] makes what can be demonstrated to be material false assertions. As such, this study cannot be used for promulgating regulation without damage being done to the constitutional rights of citizens of the United States.

Regardless of the disposition of this particular set of proposed regulations, this action by the ATF is yet another warning shot.  The ATF is working very hard to ensure that purchasing and using weapons – legally – is as hard as possible.  And yet the bureau might just take an even harder turn to the left.  If we learn nothing else through this study and related efforts, we learn that the Obama administration is no friend to second amendment rights.

Herschel Smith Comments on_ATF_Study on the Importability of Certain Shotguns

UPDATE: Thanks to Glenn Reynolds for the link.