A better question to ASK

There's a silly news release trumpeting the fact that the University of Kentucky has allowed itself to become a tool for political propaganda: Is There a Gun Where Your Child Plays? 

It's talking about the silly ASK campaign designed to encourage fear, suspicion, and social ostracism of gun owners and their children.  I do not think I have ever seen a more blatant attempt to achieve political goals by demonizing a targetted group through their children.

Some people have suggested that gun owners should respond to parents asking this question with a simple, terse "none of your business".  I think perhaps a different tactic is appropriate -- one that will better counteract the intent of the propaganda.

Imagine a conversation that begin like this:

"Hi!  I'd like to send my little Johnny over to play at your house.  But before I do that, I need to ask you whether you have a gun at your house, and whether it is safely stored, so I know my son will be safe!"

"Thanks for asking.  Yes, I do have a gun at my home.  I keep it loaded and on my person at all times; in fact, I am carrying it now.  I can assure you that little Johnny will be quite safe here and supervised by an adult at all times.  However, since I do have guns around the house, before I can allow Johnny to play in my house I will need to make sure that he understands the rules of gun safety so he can do the right thing if it ever comes up.  Have you given him any instruction?  If not I would be glad to, and you are welcome to sit in yourself."

This response neatly turns the question back on the questioner, frames the question of safety differently ("Your son is safe because I have a gun to protect him") and provides an opportunity to open a dialogue on safe terms ("gun safety") in a non-threatening environment (since the instruction is directed at the child), while reinforcing your own image as a responsible adult capable of owning and using firearms safely.

I haven't had anyone nosy enough to ask me this question, probably at least in part because I don't have kids.  I'd be interested in hearing from anyone who has.  Leave a comment!

Tue Jun 20 18:58:42 CDT 2006 by TriggerFinger. Comments [Tweet]

Statement of the Case

The statement of the case lays out the matter presented before the appeals court.  It is intended to be a brief summary of law and the current state of the case, so that the court will know what has happened to bring the case before them.
For over a quarter-century, the District of Columbia has forbidden citizens from possessing functional firearms within their homes. Handguns not registered prior to 1976 cannot be lawfully possessed within the city, D.C. Code 7-2502.01(a), 7-2502.02(a), and all lawfully registered long guns (i.e., shotguns and rifles) must be kept unloaded and either disassembled or bound by a trigger lock, with no exception that would permit a citizen to assemble or unlock the weapon for otherwise lawful home self-defense. D.C. Code 7-2507.02. Even the movement of lawfully possessed pre-1976 handguns from room to room within one?s home is forbidden without the pistol license that everyone ? including Defendants ? acknowledges is unobtainable. D.C. Code 22-4504(a).
This paragraph lays out the basic provisions of the laws that are being challenged.  It's a pretty stark demonstration of how bad things are in The So-Called Capital Of The Free World.
Plaintiffs seek to establish that the Second Amendment to the United States Constitution secures them an individual right to keep functional firearms, including handguns, within their homes, unrelated to service in any organized militia.
Exact wording can be very, very important in matters of law.  Here, we should note that one of those important words in the passage above is "organized"; the United States Code divides the militia into organized and unorganized components.  The organized militia is the National Guard and Reserve; the unorganized militia is, basically, everyone else (well, everyone else who is male and between the ages of 17-45).

It is also worth noting the narrow scope of this statement.  This case isn't about any substantial meaning of "bearing" arms, only possession of those arms within the residence of the owner.  It doesn't say registration is a no-no.  It doesn't argue about the District's silly definitions of machinegun or assault weapon, or the double-plus-ungood ban on anything that isn't a bolt-action hunting rifle, as a correspondent described.  It is only, and solely, about the most basic right to keep a functional firearm in your home. 


All of those arguments would step into the murky world of cost-benefit analysis and "compelling state interest" arguments.  Make no mistake about it; though we can win the war of facts soundly on those grounds, they are a deathtrap in the legal realm.  Right now, we have no Constitutional framework of support for the right to keep and bear arms.  The words of the Constitution are stark and unyielding, but they have been buried under a mountain of precedential obfuscation.  Judges are experts at finding ways to rule for the State given even a little cover for doing so. 
It is not the object of this litigation to engage in a policy debate over the merits of gun control. While policy questions might be relevant in evaluating the constitutionality of ordinary measures seeking to strike a reasonable balance between the explicit right of citizens to ?keep and bear arms? and legitimate governmental goals of promoting safety and order, this is not such a case.  If the Second Amendment guarantees any individual rights whatsoever, the District?s total prohibition on the home possession of handguns and functional long guns by law-abiding adults cannot stand.
This is it exactly.  Right now, in the courts, it is almost as if the 2nd Amendment doesn't exist.  If we restrict our examination to the 20th century and later, we have almost nothing.  US v Miller said the right things but ruled the wrong way on a technicality; US v Emerson did the same more recently.  The Lopez case was decided on the commerce clause, not the 2nd.  While there have been legislative victories, and while some states have had successful challenges to gun control laws, victories at the federal level have been almost nonexistent.

In order to even begin turning that around, and establishing a permanent 2nd Amendment right that can be defended in court, we need to establish several things:
  1. That the Second Amendment grants an individual right;
  2. That the Second Amendment right is not conditional upon membership in an organized militia.  (I would rather not have any militia condition at all, but I will accept membership in the unorganized militia as a condition so long as the definition remains substantially similar);
  3. That laws can be passed which offend the 2nd Amendment right, and that those laws can be struct down via court challenge.
Those three things are what this case is trying to achieve.  Once we have settled them we can argue about lesser bans, how to balance state interests in specific cases, and so on.  But before we can do any of that, we need to establish the most basic existance of the 2nd Amendment right.  Yes, it is that bad.
During oral argument below, the District Court sua sponte explored the issue of Plaintiffs? standing to bring the lawsuit. In response to a direct question from the District Court, Defendants confirmed that should any Plaintiffs violate the challenged laws, they would be prosecuted. The District Court reached the merits of Plaintiffs? claims, and held that the Second Amendment does not secure any individual rights to keep and bear arms. The District Court granted Defendants? motion to dismiss and denied as moot  Plaintiffs? motion for summary judgment.
It would be nice if the law, particularly Constitutional law, did not depend on luck. Sound legal arguments, the weight of precedent, and justice should be the determining factors in a lawsuit.  Unfortunately, that's not always the case, and especially so here.

Readers may remember the Seegars case, which was closely tied to this one, with a similar premise but much more complex legal arguments.  Though there are clearly differences in strategy between the two cases, the biggest difference in their outcomes so far comes down to luck.  Both the Seegars and Parker cases need to establish standing to bring their suit.  The Seegars case has already lost on the standing issue, in part because the Department of Justice lawyers vigorously argued that they would exercise selective prosecution.  This is sort of like a local sheriff telling his officers to only give out speeding tickets to people from out of town; it's not right, but how do you challenge it? 

In this case, the Parker counsel got lucky.  They hadn't sued anyone with big-money legal talent, and the City's lawyers admitted in court that the plaintiffs would be prosecuted if they violated the law.  Despite subsequent backpedalling, that statement is on the record, and it basically hands the Parker plaintiffs the standing issue on a silver platter.

Although we then lost the case at the District Court level on the merits, that was pretty much to be expected.  We are dealing with that appeal now. 
This Court subsequently denied Defendants? motions to summarily affirm the decision below or remand with instructions to dismiss the case on standing grounds, and granted Plaintiffs? motions to have the case proceed on the merits.  The Court instructed the parties to brief the merits of Plaintiffs? Second Amendment claims, as well as the issue of standing.
And, of course, this is exactly what we are doing now: briefing the merits.  We could still lose on the standing issue, but the court (in refusing to summarily dismiss the case) has admitted that there is at least a legal question here.  This bodes well for us on the issue of standing.  We still don't know what this Court thinks of the 2nd Amendment, though the panel of judges seems favorable -- insofar as such tea leaves can be reliably read.

Tue Jun 20 18:33:13 CDT 2006 by TriggerFinger. Comments [Tweet]

Statement of Issues

The statement of issues outlines the issues that are being appealed, not necessarily all the issues present in the case.  In this case, of course, basically everything is being appealed. 
1. Does the District of Columbia?s total ban on the possession of handguns acquired after 1976 and the possession of functional long guns in the home violate citizens? right to ?keep and bear arms? under the Second Amendment to the U.S. Constitution?
Of course it's the first question here that is the really important one. 
2. Do individuals who have been personally threatened with prosecution by government officials if they act on their sincere and undisputed intent to possess currently prohibited firearms have standing to maintain a pre-enforcement challenge to that prohibition in federal court?
This question is an enabler; the plaintiffs must have standing in order to be able to bring the case at all.  The tricky part is that plaintiffs must have an actual case or controversy in order to have standing to decide an issue; those individuals with undisputed standing to challenge a criminal statute are those charged under it.  Very few respectable firearms enthusiasts are are willing to risk provoking felony charges in order to challenge DC's law; those who get charged with possession of unregistered firearms are generally criminals who would make for a very poor case.

It is harder to establish standing for a pre-enforcement challenge.  However, it's quite possible.  Having read the various cases used in making arguments before the lower court, it seems that in practice the application of that standard varies quite a bit.  It seems to be that establishing standing for a First Amendment challenge is easy, but establishing standing for a Second Amendment challenge is more difficult. To give one example, having BATFE agents inspect your firearm factory on the day the Assault Weapons Ban went into effect is only partially sufficient (one of the resulting claims had standing, another did not).  For First Amendment cases, courts have granted standing to challenge laws that have never been enforced.

To give an idea how important this is, the Seegars case lost at the appellate level solely on the issue of standing.  It doesn't matter if you are completely right on the law; without standing for your particular plaintiffs your suit is doomed to failure.  And this is definitely a close call, because the Second Amendment does not have the same legal recognition as the First with regard to pre-enforcement challenges.  The Parker case does have one big advantage over the Seegars case with regard to standing, but nothing is certain.

Tue Jun 20 18:30:14 CDT 2006 by TriggerFinger. Comments [Tweet]

Jurisdictional Statement

This statement essentially outlines the reasons the present court has jurisdiction over the appeal.  It's straightforward.  Jurisdiction is a different question than standing (which has been an important issue in this case before).  Since this case was brought and decided by the District Court, the DC Circuit Appeals Court pretty much automatically has jurisdiction over the appeal.  The appeals court itself could decide that it doesn't have jurisdiction and the lower court should not have had jurisdiction either, but that's a different matter.

This part is mostly a formality.  The only hint of a jurisdictional question in this case came in the lower court, where the city argued that the plaintiffs lacked standing because they should have attempted to register a handgun and appealed the denial to an administrative court that would have jurisdiction over the denial of a handgun registration permit.  Since the plaintiffs did not follow that course of action, instead raising the Constitutional challenge directly, that issue will be fought on grounds of standing rather than jurisdiction.
Plaintiffs-Appellants (?Plaintiffs?) seek declaratory and injunctive relief barring enforcement of various District of Columbia statutes as unconstitutional.  The District Court had jurisdiction over this case pursuant to 28 U.S.C. 1331 and 1343. 

This Court has jurisdiction over this case pursuant to 28 U.S.C. 1291. The District Court issued an opinion and order granting Defendants-Appellees? (?Defendants?) motion to dismiss, denying Plaintiffs? motion for summary judgment, and directing entry of judgment for Defendants on March 31, 2004. JA 46. Final Judgment for Defendants was entered the same day. JA 62. Plaintiffs timely filed their Notice of Appeal on April 6, 2004. The appeal is from a final order and judgment that disposed of all parties? claims.
Return to the table of contents.

Tue Jun 20 18:27:30 CDT 2006 by TriggerFinger. Comments [Tweet]

BATFE raids KT Ordnance!

According to FreedomSight the BATFE has raided KT Ordnance, makers of "80% complete" unfinished receivers used by those who want to manufacture their own firearms.  As far as the BATFE is concerned this is a problem because it is a way to anonymously manufacture a firearm while remaining within the law (so long as the firearm is never transferred to anyone, as I understand it).  And of course as far as everyone else is concerned, this is something that is perfectly legal and should be just fine to do.

KT Ordnance was relying on an official interpertation of the law that says, basically, it's legal to manufacture your own firearms.  Since the receiver is only partially completed, it's not considered a firearm, and there's still quite a bit of work to be done before it can be used as a firearm part.  This is one of those areas of the law that is defined more than case law and precedent than legislation.  Normally, once established, those are fairly reliable, but throw in an agency that's been feeling the heat a lot lately and they may decide to reinterpert things in order to get a big prosecution.

The original reports came in from  There's more information available at the home gunsmithing forums, and an official alert from the JPFO.  There are some disturbing rumors that the BATFE was exceptionally curious about certain names in the liberty community:
It seems as though the meeting with his local sheriff was a ruse to get Richard out of his establishment so the JBThugs could go in and steal his guns, his computers, & ALL OF HIS FILES. The machine tools are still possibly going to get stolen as well in the future.

It does seem that the trigger for this raid, is that the previous sheriff had been protecting him up until yesterday. That sheriff lost the election (probably thru voter fraud), and the new sheriff had a BATFag and an FBI agent at the sheriffs? office waiting for Richard to hand him a warrant to steal his stuff at his KT Ordnance store. By the time Richard got back to his store, the Fed Thugs were there in the process of stealing all of his merchandise, all of his livelihood.

The FedThugs were also more then curious about a few known names with in the freedom/truth community. The 2 that Richard mentioned were Devvy Kidd from WE THE PEOPLE and Aaron Zelman from JPFO. They also wanted to know if Richard was in contact with any Militias and if he had sold any guns to them. (It?s none of their DAM business)
Yep, there's the militia scare word again.

What concerns me most about this is the big picture.  Bush may have been the better of two evils on the gun rights front but he was not what I would describe as a friend of gun owners; merely someone who knows he needs to do just enough to win our support to get elected.  It's his agency that's run amok here and he's shown no signs of being willing to rein it in.  I can easily believe that Bush would even support the BATFE on a case like this; his authoritarian brand of government doesn't have much room for "untamed" supporters of liberty. 

Combine that with Bloomberg's anti-gun "sting" operations and I'm afraid the Republican party may be forgetting who put them in power.

Sun Jun 18 16:39:51 CDT 2006 by TriggerFinger. Comments [Tweet]

Update on Mark Marchiafava's case

Mark was arrested in Louisiana for open carry of his firearm, which is legal in that state.  He has now filed suit.  Nicki at The Liberty Zone seems to be on top of the case.

Sun Jun 18 16:34:02 CDT 2006 by TriggerFinger. Comments [Tweet]

Biased? Nah....

Of Arms and the Law brings us the story of Jake Tapper, an ABC news reporter charged with "handling" firearms issues.  But with the news media claiming so hard to be unbiased, it's interesting that they hired him without disclosing his past work history... including as a staffer for Handgun Control, Inc.

Sat Jun 03 10:52:03 CDT 2006 by TriggerFinger. Comments [Tweet]

I can't say I'm a fan of drug use...

... but the current attitude towards prohibition in the United States is doing more harm than good.  This article, describing the results in Zurich of legalizing heroin use, suggests that other policies may be more effective. 

It is useful to reiterate here that all governments depend on voluntary compliance for the vast majority of our laws.  We pay our taxes and our traffic tickets without a quibble (mostly).  We send the police after murderers, rapists, thieves and muggers.  For the stuff in between, there simply aren't enough enforcement resources to have a prayer of enforcing the law by actual force; it all depends on the people complying voluntarily because they don't want to take the risk of being in the small percentage of violators who are actually caught.  For the victimless crimes of prohibition, with no one to report the crime and no body to find, it's even harder. 

We need to find a better solution to the real problems of drug abuse.  The current law is actually creating more problems than it solves.

Sat Jun 03 07:33:15 CDT 2006 by TriggerFinger. Comments [Tweet]

The purpose of the public education system is not education...

... but rather indoctrination.  Witness (thanks to The War on Guns) what happens when a physics teacher tries to actually teach physics:

Every year, physics teacher David Lapp brings his Korean War era M-1 carbine to school, fires a shot into a block of wood and instructs his students to calculate the velocity of the bullet... The rifle demonstration would not even be an issue if an anonymous parent had not complained.
This one strikes close to home for me, because I work in computers -- and one of the major sources of funding for early computer efforts was calculating ballistics.  How are we ever to make great strides in knowledge if whole areas of inquiry are deemed verboten?

Fri Jun 02 06:34:34 CDT 2006 by TriggerFinger. Comments [Tweet]

Moore lies...

We've seen all sorts of analysis of how Moore treated the subject of firearms and gun control in his alleged "documentary" Bowling for Columbine, particularly with regard to his shameful "interview" with Charleton Heston, but less has been said about his election-year movie Fahrenheit 9/11.  Now, a lawsuit by a disabled veteran suggests that the same shady interviewing and editting tactics used in Bowling are also used in Fahrenheit 9/11 -- in particular, using footage of a interview filmed with NBC without the consent of the soldier appearing in it.  The soldier is suing for $85 million.

Less important than the legal niceties is the fact that Moore editted the interview to make it seem the soldier opposed the war:

Damon seems to "voice complaint about the war effort" in the movie, according to the lawsuit.  But what the father of two from Middleborough, Mass., was really talking about was the "excruciating" pain he felt after he lost his arms when a Black Hawk helicopter exploded in front of him.  Damon wasn't expressing any opinion about the war, the suit charges, but rather extolling the drug.

"I just want everybody to know what kind of a guy Michael Moore is, and what kind of film this is," said Damon. He has appeared in two films attacking "Fahrenheit" -"Michael Moore Hates America" and "Fahrenhype 9/11."

Amusingly enough, there's an exemption within copyright law that allows some educational institutions to avoid obtaining permission to use copyrighted works.  I don't know exactly how this sort of situation would play out legally, but I would be very amused if Moore cites some sort of educational exemption and loses the case anyway.

Hat tip to Arms and the Law for the original story.

Fri Jun 02 06:20:50 CDT 2006 by TriggerFinger. Comments [Tweet]

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