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December 2010
More detail on ATF long gun multiple sales reports
The press conference makes it clear the requests are being made as "letter" requests... in the past, ATF had used this power with regard to one or a few dealers, for particularized reasons. Here, they are using it as to all FFLs in four States, and applying it as to multiple sales. But they still have to seek OMB clearance, since it's a general collection of data and thus covered by the Paperwork Reduction Act. One curious thing is that the acting director says it only pertains to sales of rifles with "caliber greater than .22." I doubt the agency means to exclude AR-15s and such, but I hope the acting head of ATF appreciates that .223 is .22 caliber, and knows how to say ".22 rimfire" if that was his meaning.
Transcript of ATF Acting Director Melson — Webcast
December 20, 2010
Acting Director Announces Demand Letters for Multiple Sales of Specific Long Guns in Four Border States
Hello, I’m Ken Melson, the Acting Director of ATF.
A recent initiative by the Bureau of Alcohol, Tobacco, Firearms and Explosives has caught the attention of national media outlets. I wanted to make sure everyone heard from me about this law enforcement initiative so there isn’t any confusion.
Recently, ATF announced through the Federal Register our intent to initiate a new Demand Letter requiring the reporting of multiple sales of certain long guns by Federal Firearms Licensees, known as FFLs, in the four Southwest Border States. We took this step as a way to help gain actionable law enforcement intelligence which we believe will help reduce criminal firearms trafficking along the Southwest border.
Before we can actually issue the Demand Letter we must receive approval from the Office of Management and Budget for purposes of the paperwork reduction act. We expect to receive that approval in early January, 2011.
As many of you already know, the goals of ATF’s Southwest border firearms trafficking strategy are:
•: To prevent violent crime;
•: Ensure the safety of the communities and law enforcement situated along the Southwest Border;
•: And to disrupt and dismantle the firearms trafficking networks responsible for the diversion of firearms from lawful commerce into the hands of the Mexican Drug Trafficking Organizations (DTOs)
Since 2006, there has been a significant increase in drug and firearms-related violence in Mexico and along our Southwest border. In response to this increased violence, ATF has deployed focused resources nationally to prevent the firearms trafficking along the Southwest Border and into Mexico.
According to ATF trace data, investigative experience, and Mexican law enforcement officials, a large number of rifles are being used in violent crimes in Mexico and along the border. Our new Demand Letter will implement a limited reporting of multiple sales of certain long guns that functions similarly to the current practice of reporting on the multiple sales of handguns. Currently, all FFLs in the country are required to submit a report of multiple sales to the National Tracing Center when an FFL sells two or more handguns to the same purchaser within five consecutive business days.
The proposed Demand Letter, which is narrowly circumscribed to meet our objectives, will apply a similar reporting requirement to certain long guns, but with these distinct differences:
First, the reporting requirement will apply only to FFLs doing business in Texas, New Mexico, Arizona and California, which are major source states for crime guns seized in Mexico and traced to federal firearms licensees.
Secondly, the reporting requirement applies only to those rifles having all of the following characteristics:
•: A semi-automatic action;
•: A caliber greater than .22; and
•: The ability to accept a detachable magazine.
These specific characteristics subject a very narrow group of long guns that have been identified by ATF and the Government of Mexico as being involved in violent crimes in Mexico to the reporting requirement.
This reporting requirement would apply to the disposition of all rifles in the inventory of the FFLs exhibiting these characteristics, both new and used.
Third, we propose to implement this initiative as a pilot project for a period of one year.
Taken together, limiting the geographic scope, impacting a limited number of licensees, affecting a specific group of rifles, and limiting the duration of this reporting requirement, form a tailored, discreet, responsible and proactive response to a significant law enforcement issue.
Let me be absolutely clear. The purpose of requiring FFLs to report the specified multiple long gun sales in these four source states is to identify criminal firearms traffickers, not to prevent the full and free exercise of our Second Amendment rights, or to encumber the FFLs with burdensome paperwork.
These reports will give ATF real-time leads for the investigation of gun trafficking. ATF’s experience in these source states proves that multiple purchases of the described rifles are strong indicators of firearms trafficking to Mexico. By obtaining information about these multiple sales, ATF increases the likelihood of uncovering and disrupting trafficking schemes before the firearms make their way into Mexico.
I know that FFLs are good citizens who share ATF’s interest and commitment in keeping guns out of criminal hands. Working together we can do that without infringing on the rights of law abiding Americans.
Ruling on right to arms and DV cases
United States v. Chester, handed down by the Fourth Circuit today. Defendant had been convicted of firearm possession after a misdemeanor DV conviction, and appealed. The Fourth Circuit initially vacated the conviction in an unpublished opinion that rejected the argument that the prohibition was justified under Heller's reference to "long standing" forms of gun regulation, and remanded, instructing the trial court to determine if there was any other justification. The Circuit then granted rehearing and entered this published decision.
The court initially deals with Heller's "long standing" regulations that are "presumptively lawful." It concludes that the first inquiry is whether the practice regulated lay outside the right to arms as originally understood. If it did not, then determine standard of review. The Court notes that scholarship is divided even as whether felons were outside the original right to arms, and there is no reason to believe misdemeanants were.
As to standard of review, the court notes that First Amendment restrictions are sometimes assessed under strict scrutiny and sometimes under intermediate review. Here, it rules, as one convicted of a violent misdemeanor, the Defendant is not within the core right which pertains to the law abiding, and the bar should be assessed under intermediate scrutiny.
But the court takes that seriously:
"Although [the various forms of intermediate scrutiny] differ in precise terminology, they essentially share the same substantive requirements. They all require the asserted governmental end to be more than just legitimate, either ‘significant,’ ‘substantial,’ or ‘important’ . . . [and] require the fit between the challenged regulation and the asserted objective be reasonable, not perfect."). Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government."
"We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having
established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to
respond."
Judge Day concurs, but argues that the relevant standard should not be whether DV misdemeanants in general can be barred arms, but whether this particular defendant .... who was quite violent, and went beyond the bare "offensive touching" minimum of battery ... can be barred.
Permalink · Chicago aftermath · Comments (1)
Ohio Sup Ct upholds pre-emption law
City of Cleveland v. State of Ohio, Ohio Supreme Court, Dec. 29, 1010. Conflict between Cleveland's enactment of a number of gun regulations, and Ohio's statewide pre-emption law. The City contended that the pre-emption law was unconstitutional under the State constitution's provision of home rule for incorporated cities. The test there was whether the State statute deals with matters of Statewide, general, importance, or tries to dabble in local matters, and the Supreme Court majority held that it was a statute of general importance. It was a statute that sought to make legal standards uniform throughout the State, it applies uniformly to every location in the State and not just this city, it involves the police power.
This seems to me rather obvious. In proof, however, that some courts apply different rules when gun regulations are at issue (witness how in Heller the Court's "liberal wing" suddenly became the strictest of strict constructionists for an hour), the Court of Appeals had struck down the statute, and even held that its provision for attorney fees should a person challenge such ordinances and win was unconstitutional because it “invite[d] unwarranted litigation and attempt[ed] to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations.”
Permalink · State legislation · Comments (3)
Aaron Zelman passes on
Regret to report that Aaron Zelman, founder and leader of JPFO, died on December 21. Stunning news. He was constantly inventive, and did an absolutely incredible job considering the group's limited resources.
"Cop killer bullets" -- in 1936
A research find, from the papers of Homer Cummings, FDR's Attorney General. J. Edgar Hoover (then signing as John Edgar Hoover), writes that S&W is going to produce a ".357 Magnum," a round plainly meant as a cop killer. It can't be meant to increase stopping power, he adds, because we all know that slow, heavy bullets are the key to stopping power. (This actually was a common belief at the time, that low velocity somehow increased stopping power).
UPDATE: zinc bullets were still an issue in the 1970s (i.e., before Super Vel brought out the first functional expanding pistol bullets). The idea was to cast a bullet out of zinc alloys that were of the right hardness to take the rifling without damaging it. Zinc is much less dense than lead, so they could be pushed to much higher velocities. In the days before Super Vel, a light nonexpanding bullet at high velocity had potential for increasing stopping power. I was surprised to find that this issue had been raised in the 1930s!
More on ATF extending multiple sales reports to rifles
I'd noted earlier that ATFE has issued a proposed rule that will require reporting of multiple sales of rifles that accept detachable magazines. Here's the formal notice.
Dealers have long been required to report multiple sales of handguns to the same person within five business days of each other, but this is the first attempt to extend it to rifles. The core concern with the reporting is that the dealer not only logs the sale in his records, but must report it (with full description of the firearm and the purchaser) to the agency, which (it is safe to assume) computerizes it.
There are several violations of the Gun Control Act, as amended by the Firearm Owners' Protection Act. First, 18 USC §926(b) provides "The Attorney General shall give not less than ninety days public notice, and shall afford interested parties opportunity for hearing, before prescribing such rules and regulations." This is stricter than the Admin Procedure Act's general provision for a "reasonable" comment period, and it has no emergency exceptions. ATFE is only giving 30 days' notice.
Second, the FOPA amendments were intended to cut off future requirements of direct reporting -- I say future because the existing regs (including reporting of multiple handgun sales were grandfathered in, but limited to those specific requirements. Thus far and no farther.
18 USC §926(a) allow promulgation of necessary rules and regulations, adding:
"No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof..." Moreover, 18 USC §923(g)(3), which required multiple sales reporting, specifically limits it to handguns: reporting is required when a dealer "at one time or during any five consecutive business days, two or more pistols, or revolvers, or any combination of pistols and revolvers totalling two or more, to an unlicensed person."
It's time to contact legislators about this, pointing out the illegality, and asking them to lodge protests with agency and with the Office of Management and Budget, which is being called upon to approve the request, pursuant to the Paperwork Reduction Act.
Brian Aiken gets commutation of sentence
David Codrea has the story. Aiken is the fellow who was convicted, and sentenced to years of imprisonment, in NJ for possessing arms (and, shudder, hollow point bullets) that he'd legally purchased in Colorado. He still has felony convictions, but at least will be out of jail soon.
Permalink · State legislation · Comments (2)
Very cool!
Never heard of using a video clip to promote a book, but if this is any sample, it's going to be one heck of a technique!
Another book review
It's With My Rifle By My Side: A Second Amendment Lesson. This book is directed at, I'd think, 5-7 year olds, able to read but just starting out. There's something especially nice about a kid's book that ends with the rules of gun safety, and Second Amendment quotations.
"The 21st Century Sniper"
Another book I'd wanted to review for a time (the snakebite did slow me down a bit) -- The 21st Century Sniper, by two former SEALS, Brandon Webb and Glen Doherty. It traces the history of sniping and then gets into modern tools (including the .50 BMG and its smaller but still enormous cousins), thermal imaging, ballistic computers, and a big chapter on suppressors and their use. (As the authors note, if OSHA was in charge of firearms, suppressors would be mandatory). Available on Amazon.
New book on self defense law
Mitch & Evan Vilos, "Self Defense Laws of All 50 States," available here. This must have taken forever to research and write. It has the statutes of every State, notes on major case law in each, and practical explanations of each of these entries. Then charts on when deadly force can be used in each State, a prosecutor's opening statement in a self-defense case (just to show how your actions might be portrayed), and "the mother of all self-defense laws," which they suggest promoting to your State legislature. Concisely written, it still spans 554 pages.
Permalink · Self defense · Comments (2)
Attorneys fees in Heller
Guns and Money reports that the post-Heller fight over attorneys' fees is still ongoing. Here's the revised motion.
Apparently DC is willing to pay something over $700,000 to Alan Gura and team, while the good guys seek $ 3 million. I find the thought of DC paying either sum just wonderful. (1) It's obviously nice because the right folks finally are compensated; (2) DC effectively winds up supporting their future Second Amendment litigation; (3) any government considering a potential infringement has to consider that there may be a price tag and (4) it sets nice precedent for any future motions.
Permalink · Heller aftermath · Comments (3)
A safe bet
If Brady Campaign accepts, I think gunblogger Stephen Wright will have $50 more for Christmas.
Frisk based on progun bumper sticker
David Codrea has report: a driver stopped for speeding and a broken light was removed from his car and frisked, based solely upon a GeorgiaCarry.Org bumper sticker.
So a (limited) search and (prolonged) detention based on First Amendment protected freedom of speech and association, aimed at promoting a lawful activity protected by the Second Amendment. Rather hard to see where there is probable cause or articulable suspicion of criminal activity in that scenario.
ATF proposed multiple gun sales reports for many long arms
ATFE has issued a proposed rule that will require reporting of multiple sales of rifles that accept detachable magazines.
Dealers have long been required to report multiple sales of handguns to the same person within five business days of each other, but this is the first attempt to extend it to rifles.
Thoughts on Justice Breyer on the Second Amendment
Prof. Sanford Levinson has written on how views of the Constitution break down in a pattern very similar to the division in religious thought during the Reformation and Counterreformation. There are underlying considerations that escape notice, even as a person takes a position. He actually has a four way split, but we can use a simpler two-way one:
The Constitutional "Catholic" view: interpreting the Constitution is a duty assigned to a special body of experts. The are the best and the brightest, and devote a substantial part of their lives to this task, hence are unlikely to botch it up. Each decision they make is made in the context of past ones, which are likewise unlikely to have been botched. Their first undertaking is therefore to decide the issue now before them so that it is supported by all past decisions and conflicts with none. One should be reluctant to depart from past rulings, because that destabilizes the entire intellectual framework.
The Constitutional "Protestant" view: the Constitution is a straightforward document, established by the consent of the people and meant to be read by them; specialized bodies tend toward bias and self-interest. The first point of reference should be the document, not prior interpretations of it. If the past decisions of a specialized body have wandered from its apparent meaning, they should be of no consequence, since it is the document, not prior rulings on it, that governs. Everyone makes mistakes, and when they are made we should correct them, and not reluctantly.
Justice Breyer on the Second Amendment
Short form: losing hurts.
Of course the Framers knew of gun laws. They required most male citizens to have at least one.
Hat tip to reader Jim Kindred....
Excellent shooting under pressure
Story here. The officer survived because when the would-be killer stuck the gun in his face, the hammer dropped on a fired round, and the officer swatted the gun with his flashlight as he fell back and drew. Thereafter he greatly improved the auto's air ventilation systems.
Permalink · Self defense · Comments (4)
Another no tolerance = no brains
16 year old Montana honors student forgets a cased hunting rifle locked in trunk of car, then informs the school of her mistake, and now faces expulsion. Contact data is in extended remarks below.
Continue reading "Another no tolerance = no brains"
Colt comes up with new plastic cartridge cases
Very interesting. [ pdf, 1 meg]. One version uses a plastic case with a spiral surface; it is said to reduce ammo weight by about 40% and offer easier extraction.
Permalink · shooting · Comments (8)
Washington DC is famous for...
Here's a Google map of the US, showing the leading Google search strings relating to each State or other jurisdiction. For Texas, it's "Rangers." For Oregon, it's "Trail." For Kansas, "CIty Chiefs."
Reader Steve Barr points out -- look at District of Columbia.
Permalink · Heller aftermath · Comments (6)
"Knife Rights" gets favorable NY Times writeup
The times, they are a-changing.
I can't imagine the Times having anything good to say about any type of arms ten years ago. In fact I can barely imagine it now. [Update: I had to block gmail and yahoo email addresses due to waves of comment spam, but the blog will accept comments without an email address, so just omit it]
Continue reading ""Knife Rights" gets favorable NY Times writeup"
Permalink · media · Comments (2)
A new type of firearm
An interesting debate over at CleanUpATF.org. It's complicated, but I believe concerns what do you have when you have a shotgun with length below the NFA limits, but originally made with a pistol grip instead of a shoulder stock? Is it an ordinary handgun, since it is not designed to be fired from the shoulder? Is it an NFA arm, more regulated, since it is a shotgun with short barrel? Or is it a destructive device, most regulated of all, since it is over .50 caliber and not within any exemption?
Add to that ATF's ability to change its rulings at any time... is the current ruling, that it is an ordinary handgun, an attempt to sucker in the proposed manufacturer (against whom ATF has a serious grudge match) and then, after he has invested in making the firearms, reconsider, seize and forfeit the firearms, and put his production line out of business?
Permalink · National Firearms Act · Comments (2)
John Lott on the nominee for head of BATFE
In National Review Online, John Lott discusses the record of record of Andrew Traver, nominee for Director of the agency.
"Mr. Traver has done more than make clearly inaccurate claims about so-called “assault weapons.” He has supported banning .50-caliber rifles, regulations that would force many gun shows to close down, the Chicago handgun ban, and repealing the Tiahrt Amendment, which protects sensitive trace data from being misused in frivolous municipal lawsuits against gun makers. He also worked with the Joyce Foundation, which has funded gun-ban groups such as the Violence Policy Center, on the “Gun Violence Reduction Project.”"
Permalink · BATFE · Comments (2)
Silencer sales booming
With Texas leading the way. I like the quote from Jerry Patterson, Texas Land Commissioner:
""The only use I can think of for a silencer is if you are hunting hogs and have 15 to 20 hogs at a feeder," said Texas Land Commissioner Jerry Patterson, a former state senator who shepherded conceal-carry legislation in 1995. "That's a practical use if you want to shoot one without scaring others off."
"Or maybe if you're getting rid of squirrels in your back yard," said Patterson, who always carries a gun but does not have a silencer."
Permalink · National Firearms Act · Comments (11)
Josh Blackman on Heller & McDonald
Josh Blackman has up an interesting post analyzing an ABA Journal article on those decisions. The gist is that the decisions, while recognizing a right, failed to give lower courts much guidance on they go from here. That might be because the Court itself wasn't sure, and figured the best course was to let the lower courts explore the issues for a time (an approach which lower court judges might find a bit frustrating).
Permalink · Chicago aftermath · Comments (1)
Amtrak allows firearms in checked baggage
And Brady Center worries about train hijackings:
"Once this takes effect," said Daniel Vice, senior attorney for the Brady Center to Prevent Gun Violence, "you would be able to check, for example, a dozen AK-47s onto an Amtrak train -- and once they're on there, the baggage car's not secure like a cargo hold of an airplane."
"Take this train to Cuba, now!"