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February 2015
District Court rejects challenge to CA "gun roster" law
CalGuns Foundation link to the ruling is here. You can read the first few pages and know what the outcome will be. California seeks to ensure guns are safe, etc., etc., so only very safe guns are put on the roster ("Safe" means, for example, that the gun must have a loaded chamber indicator that somehow allows a new user to know whether the firearm is loaded without consulting the manual. Every loaded chamber indicator I know of assumes that you read the manual or had someone point it out to you, so at least you know what to look for).
The contrast comes at the very end, when the court has to deal with the fact that the statute exempts law enforcement personnel (including, as I recall, employees of prosecutors' offices). The court simply pronounces that police may have different needs for firearms than do non-police. But if the roster would truly about safety, the question must be, do police and prosecutors have a special need for unsafe guns?
One plaintiff had no right arm, and wanted a Glock with an ambidextrous magazine release. But while the Glock he wants is on the roster, California does not list it with an ambidextrous release, and considers that a different, and unlisted, firearm.
Jim Bovard remembers Mike McNulty
Posted here.
"One of the heroes of the Waco fights of the 1990s has passed away. Mike McNulty did more than any other single person to doggedly pursue the truth about Waco. And he produced or co-produced a number of superb films that vividly and compelling explained why the feds were lying about the carnage they unleashed in Texas. And he fed great information to me and other journalists - as well as sometimes impatiently pushing us forward, urging us to turn over more rocks."
Supreme Court argument in Henderson
The government's "constructive possession claim didn't get very far. The government had been contending that designating to whom the firearms could be transferred was "control," and hence exercising illegal "possession." Then before argument they conceded that Henderson could transfer them to a licensed dealer. Looks like they didn't prepare for "if his transfer to a dealer isn't possession, how can his transfer to a nondealer be possession? There's no difference in terms of exercising control"?
HSUS loses charity rating
Charity Navigator just revoked their rating and put a "donor advisory" alert in its place. This comes in the wake of a $15 million payout to settle an extortion and bribery suit, and moving $26 million to offshore accounts.
RIP Mike McNulty
I just heard, know no details.
Mike produced "Waco: The Rules of Engagement" and directed "The FLIR Project" and "Waco: A New Revelation." Back in '93, he and I forced reopening of the Waco issue, which led to appointment of an independent counsel (who spent a lot of money, prosecuted the one honest guy on the government side, and did little else). The third member of the group (I can't call it a team, since we had no organization) was Gordon Novel, who died last year. (If a dictionary wanted an illustration for the term "enigmatic," they would have used Gordon's picture).
UPDATE: it was a heart attack. Dang, Mike was SO dedicated a man. Here's a memorial page for Mike. Funeral is 11 AM Thursday, at the LDS stake center at 3800 Mountain Lion Dr., Loveland, CO.
Supreme Court argument approaching
Tuesday, Feb. 24, the Supreme Court will hear argument in Henderson v. United States, describing in this SCOTUSblog post. Henderson surrendered his firearms to the government, as one of his conditions of release. He was later convicted of a felony, and thus could not "possess" firearms. He requested to be allowed to sell or transfer his firearms to others, who could legally have them. The government refused, arguing that one aspect of possession is control, and for him to designate who the firearms went to would be for him to exercise control. In other terms, he "constructively possessed" ("constructive" here derived from "construe") if he tried to transfer them, even if they were locked away in an evidence locker and inaccessible to him. Looks like Second Amendment issues are raised, as well.
I'd rate the government's position as very weak. If you cannot lay hands on something, you don't really possess it; you may own it, but you don't possess it. By that standard, a person could be convicted in New York for possessing an unregistered handgun, based on his owning one that is in Arizona. Also it has a practical problem. Henderson owns his firearms; the government does not. The government, it would seem, is bound to keep them through all eternity for him. It can't destroy them without depriving him of property without due process of law. It can't forfeit them: they were involved in no violation of the Gun Control Act. At the time he surrendered them, he was a legal possessor (a person under felony indictment can continue to possess the firearms he has, though he cannot "receive" additional ones). The government is setting itself up for a loss, and probably by a big margin (which means a quick ruling; the Court disposes of 9-0s and 8-1s pretty quickly, and saves the 5-4s for the end of the Term in the late spring).
Recovering attorneys' fees in Federal forfeiture cases
By pure luck, I came across this, a provision allowing recovery of attorneys' fees in forfeiture cases. It ought to be of great use in gun forfeiture cases at the Federal level.
28 USC §2465(b) provides:
"(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for--
(A) reasonable attorney fees and other litigation costs reasonably incurred by the claimant;
(B) post-judgment interest, as set forth in section 1961 of this title; and
(C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale--
(i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and
(ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day Treasury Bill, for any period during which no interest was paid (not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was seized by a Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a State or local law enforcement agency."
The exceptions in (2) cover forfeiture of intangible rights, claimants who were convicted of the offense, and situations where multiple persons are claiming the same property. So it appears that, as a general rule, a prevailing claimant can recover attorneys' fees in a gun forfeiture case.
BATFE moves to ban SS109/M855 .223 ammo
M855 is the current military issue, and so comprises the "surplus" ammo market in 5.56 NATO. BATFE originally classed it as suitable for "sporting purposes" and thus exempt from the AP ban. It now proposes to reverse this and ban production for the civilian market. The official reasons given largely hinge on the development of AR-15 platform handguns.
Here's background on the issue and here's BATF's explanation of its reasoning.
Comments are open until March 15. They can be emailed to [email protected] faxed to (202) 648-9741.
I have some trouble understanding how the M855 fits the statutory definition of AP ammo. It has a two-part core, with a steel penetrator in front and a lead core behind it, under the standard copper-alloy jacket. The statute provides:
"(B) The term "armor piercing ammunition" means--
(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile."
(i) doesn't seem to fit: the neither the projectile nor its core are "constructed entirely" of any of the metals named. The M855 core is lead and steel, not just steel.
(ii) doesn't fit either: the M855 isn't designed or intended for use in a handgun, its jacket is less than 25% of the weight of the projectile, and it's debatable whether .223 can be called "larger than .22 caliber." (if the bore is expressed in hundredth of an inch, as here, the larger next step would be .23 caliber).
California Lawyer magazine on Chuck Michel
It's carried as the cover story.
Ban on FFL handguns sales to nonresidents struck down!
Mance v. Holder, opinion in pdf. US District Court for the Northern District of Texas holds that the ban is unconstitutional on its face and as applied. A resident of Washington, DC (which now allows handgun in the home, if registered) wanted to buy a handgun from a Texas FFL, because there's only one FFL in DC and he charges $125 to do the paperwork. The seller had standing to sue in Texas, since would otherwise lose the sale. The court holds that the GCA prohibition on the sale fails strict scrutiny, and also intermediate scrutiny, and enjoins enforcement of the restriction. Another win for the industrious Alan Gura!
UPDATE: it's not clear to me how the ruling applies geographically. Clearly it applies in the Northern District of Texas. But it orders the Attorney General (any by extension anyone working under him) to stop enforcing the requirement, so may apply anywhere: if he enforced it in Maine or in Washington, he'd have violated the injunction, and could be held in contempt by the Texas court. Citizens' Committee for the Right to Keep and Bear Arms was an organizational plaintiff (the court cites to it without the first word in its name), suing on behalf of its members, so the ruling would protect, at the very least, its members.
FURTHER UPDATE: the court's ruling is limited to purchases from an FFL. The gov't was citing problems that led to enactment of the interstate ban (felons from DC buying in Maryland) and the court notes the gov't can't come up with any more recent accounts. It probably had in mind the background check requirement for FFL purchases.
"The 2A was only meant to protect muskets"
An amusing video takedown, from Louder With Crowder.
Rosa Parks' Experience with Firearms
The Washington Post, no less, discusses Park's private papers and what they tell about guns.
"When Rosa Parks was a little girl in rural Alabama, she would stay up at night, keeping watch with her grandfather as he stood guard with a shotgun against marauding members of the Ku Klux Klan.
Klansmen often terrorized black communities in the early 1900s, and Parks's grandfather, Sylvester Edwards, the son of a white plantation owner, had their house boarded up for protection.
But Parks longed for a showdown.
"I wanted to see him kill a Ku-Kluxer," the renowned civil rights leader wrote in a brief biographical sketch years later. "He declared that the first to invade our home would surely die.""
. . . . .
"Adrienne Cannon, an African American history and culture specialist at the library, said parts of the handwritten sketch do not appear in her published autobiography, "Rosa Parks: My Story."
The book is Parks's "public image," Cannon said.
The sketch is "Rosa with her hair down," she said. "She's 6 years old . . . waiting for Grandpa to kill a Ku-Kluxer. This is the real deal. This tells you how she had the strength and determination to do what she did.""
The difference between her private notes and her public autobio reinforces what Nick Johnson relates in his book Negroes and the Gun: The Black Tradition of Arms": for most of the civil rights period, those involved used firearms unabashedly. Very late in the process, the leadership of civil rights groups became concerned that groups like the Black Panthers were damaging their brand, and so swept all that under the carpet.
Bloomberg for once shows candor
Story here. Original story here.
"Bloomberg claimed that 95 percent of murders fall into a specific category: male, minority and between the ages of 15 and 25. Cities need to get guns out of this group's hands and keep them alive, he said."
A narrower version of the Black Codes, in other words. Of course, no government can "get guns out of this group's hands." All it can do is arrest and imprison people within that group who possess firearms (whether for self-defense or for crime). In an article which I've written, I explore studies of social relationships within extremely high crime areas (as in ten times the national homicide rate) that conclude that, even in those areas, lethal violence is confined to a tiny part of the population; 98-99% of the population isn't interested in killing anyone, tho they may be in keeping themselves alive.
Bloomberg, who travels protected by armed guards, doesn't see the difference between his position here and what he says earlier in the article: "It's always the poor that get screwed."
Podcast on NRA suits against PA cities
Right here. It features Jonathan Goldstein, attorney for the good guys, and Shira Goodman, director of a Bloomberg subsidiary, excuse me, of CeasefirrePa.
Legal concealed carrier attacked by bystander
Story, with video, here. A Florida man with a CCW carry permit walks into a Walmart. Some guy sees him holster the gun in the parking lot, and tackles him, apparently trying for a chokehold. (Reports have it that in the fight the carrier said to him "I have a permit!") The legal carrier was black; not clear whether that mattered, but if it had been me I doubt he would have decided it was time to try to go for it. Clue: if the guy has a holster and a salt-and-pepper beard, he is probably not a risk). Good ending: police charged the attacker with battery.
FDIC backs off "Operation Chokepoint"
Story here. Operation Chokepoint was aimed at discouraging financial institutions from dealing with certain forms of business that were supposedly likely to generate returns, credit card protests, and things like that. It quickly expanded into discouraging dealings with governmentally disfavored forms of business... including licensed firearms dealers, and coin dealers.
(I've actually stayed in the building pictured: it has a hotel-like wing, and a special deal for local universities. Never again. It was like a hotel designed by Joseph Stalin, or perhaps some architect of prisons. You had to pass a checkpoint to park the car, another to get into the building. One soda machine in the entire place.).
Student suspended for threatening use of magic ring
Sometimes you can't make this stuff up. Fourth grader is suspended for telling someone he has the ring of power and can make him invisible.
He's already been suspended twice: for mentioning that a black classmate was black, and for bringing The Big Book of Knowledge to class. As Glenn Reynolds says, in this day and age sending a kid to some public schools constitutes child abuse.
International comparisons
Bill Whittle's presentation on the issue may just be the best one I have ever seen.
Operation Choke Point creating a stir
The Washington Times has the story. The Inspector General getting involved sounds like a good sign to me. Now, if someone whose bank spurned them would file a Federal Tort Claims Act claim, citing tortious interference with contract, things might get quite lively, especially during the discovery process.