Where Even Prosecutors Can't Carry

Uncle links to a story about a man who fires some warning shots because a gang of, well, gang members was threatening him. The comments discuss the wisdom of warning shots and legal implications.

Here's some additional background. The Nassau County DA's Office is reeeaaaally anti-gun. The office has a policy of barring handgun ownership by its employees. That's in great contrast with a lot of places like Virginia, where prosecutors can carry concealed anywhere, even in bars while drinking, without the training necessary for a concealed handgun permit. Because they're like you and me, only better.

Here is the application for assistant district attorney, and here is the one for interns. Note the following in background questions:

Applicant Questionnaire: Yes or No
3. Have you ever had a license to possess a firearm in this state or any other state?
...
NOTE: AN AFFIRMATIVE RESPONSE WILL NOT NECESSARILY SERVE, IN AND OF ITSELF,
AS A DISQUALIFICATION FOR EMPLOYMENT

And the closing (signature-required) condition:
Gun ownership: I understand that assistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney.

So, anybody think that this attitude may, even unconsciously, affect the judgment of the prosecutors in this case?

There's nothing so egregious as this in Virginia, but I discuss a lot of relevant self-defense considerations such as the standards for the use of deadly force in Virginia in my legal seminars. Next one is October 23, 2010; contact me to sign up.

Malum Prohibitum

The NY Times reports that Chicago's gun ordinance, as well as state gun laws, aren't successfully used to deter violent crime. HT Uncle.

“We do bypass our ordinance because the penalties are more serious under state laws,” Ms. Hoyle said. “But there’s this idea that we didn’t really enforce the ordinance, and that’s just not true. We prosecute people all the time.”

Those prosecutions, however, rarely result in convictions, according to the data from the clerk’s office. While the police have made 12,967 arrests since 2000, city attorneys have won just 2,068 convictions.

But these ineffective (and unconstitutional) gun laws have to be defended in court:

Charles Boesel, director of communications for the Joyce Foundation, said in a written statement that the city’s gun ordinance was worth defending regardless of how often it was enforced, because a decision to apply the Second Amendment to states and municipalities “could have profound implications for current and future gun policy in Chicago and nationwide.”

Good to know. Next time you defend a gun law on the basis that it's "for the kids," you'll just stipulate up front that they don't work, and you're just doing this because: (a) the Joyce Foundation pays you to, and (b) you think that people are better off dead and in compliance with nonsensical laws than being able to defend themselves, right?

More on the AR for Home Defense

My post yesterday on using an AR (or AK, I suppose) for home defense elicited a few comments worth discussion.

Let me start by saying that I'm not making a recommendation one way or the other. If you can intelligently explain your choice of defensive tools, then drive on with your bad self. If I decide to equip the hearth and home with an AR, I've got the fact that Uncle Sam spent a bunch of time and money teaching me how to use it, I've fought overseas with one, and there's simply no firearm that I perform better with. Apartments may not be ideal keeping AR rounds out of your neighbor's place, but according to the Box O' Truth, pistol rounds go through sheetrock pretty well too. So maybe the overpenetration concern is universal if sheetrock is all that separates you from next door. I wonder what separates townhouses from each other. Anyone in construction have a line on this?

As Tim pointed out, Harold Fish's prosecution for murder was an outlier, and not a good gauge of what to expect if you use force in self-defense. However, Arizona's laws at the time, where self-defense is an affirmative defense, remains the rule in the overwhelming majority of the states. That's IF you get prosecuted. Prosecutorial discretion is the factor that makes most self-defense shootings remain news stories and not court cases.

Frank W. James weighed in to point out that the castle doctrine makes the weapon a non-issue inside the home. That's true in certain instances. But all "castle doctrine" statutes are not created equal. Some are really "stand your ground" statutes that remove the duty to retreat outside the home. Some are just laws strengthening defense of habitation claims.

Take North Carolina, the California of the South in terms of gun laws. The Castle Doctrine statute is really a defense of habitation measure. If a lawful occupant is preventing or terminating unlawful entry that they reasonably believe is going to harm/kill someone inside or commit a felony, then the lawful occupant can use any level of force against the intruder. But once they are inside, then the proportionality of force requirement applies, but without the duty to retreat (if reasonable) that exists outside the home. If you come downstairs for a glass of milk at night and find an intruder already inside who does nothing to threaten you, then ejecting a trespasser is supposed to be done first with "gentle hands." The NRA-supported bill to change this state of affairs bogged down.

Virginia doesn't have a castle doctrine statute, but the case law on self-defense is such that you'd have to really screw up to get prosecuted for shooting someone in your own home. There's a lot more to that explanation, and it takes about three hours.

Frank also had some smart things to say about magazine retention and bugging out if society breaks down or the zombiepocalypse hits us. Then he said some more smart stuff. Good blog, now on the blogroll.

Brady Bunch Endorses Self-Defense

Michigan man shoots at five would-be robbers who accosted him in his driveway. Which would be illegal under the new Chicago gun regulations. Peter Hamm of the Brady Bunch says it was justified.

Alphecca:

Well that’s a Kodak moment. Of course, if it were left to the Brady Bunch, the hurdles to legal gun ownership would be so difficult that only movie stars and politicians could jump them. AND, all you could own is, maybe a .22 or an Airsoft rifle.

A lot more on the contradictions inherent in Brady Bunch positions from Linoge.

Shooting Guns Out of Hands

Shooting a gun out of someone's hand or "shooting to wound" is a bad idea for a number of reasons. Yet the New York State Assembly was trying to mandate that officers do just that.

Commissioner Ray Kelly invited City Council members to the range to show them how hard it is to do what they are considering.

This is what it comes down to when people who know nothing about guns try to write laws to govern them.

In related news, microstamping just passed the Assembly.

Gun Show "Loophole" Bills Update

As Sebastian notes, a measure to close the "gun show loophole" failed in the House Militia, Police and Public Safety Subcommittee. Though this was not the only legislation trying to shut down private sales at gun shows, it likely means that the effort is dead this year.

HB1234, the bill that was voted down, and SB595, its Senate companion, have a very broad definition of "firearms show vendor" that included anyone who sold any firearm at a gun show, including in the parking lot outside. This was likely prompted by the 20/20 segment where Omar Samaha was able to buy a gun in a gun show parking lot. Good riddance.

However, HB520 is still sitting in the same subcommittee. It requires anyone who arranges for a fixed location from which to sell, transfer, or exchange firearms at a gun show to have a Federal Firearms License (FFL). This isn't a sea change - I'm pretty sure most people with booths have FFL's already. However, it requires anyone who sells three or more firearms, regardless of having a booth or not, to have an FFL. While I think that the gun show push is an uphill one, this bill has an incrementalist approach that gun rights supporters need to watch out for.

As always, the VCDL Legislation Tracking Tool is a good place to keep an eye on these things.

Virginia Church Carry Ban

One of the proposed bills (HB 106) in the Virginia legislature repeals both the restaurant carry ban and the ban on carrying a concealed handgun at a house of worship where services are occurring "without good and sufficient reason."

When I teach my legal seminars, I am up front about the church carry ban. I have no idea what constitutes a "good and sufficient reason." Neither does anybody else.

I strongly suspect that this is a variation of the "Black Codes" that Uncle and Thirdpower are highlighting. The Black Codes kept Blacks disarmed in the South after Reconstruction faded away. Georgia was one of the first states to offer a handgun carry permit - an excellent way to restrict who was carrying based on race. Bans on carrying to church grew out of the fact that once Blacks had guns, the Klan wanted a place where Blacks could be assembled and disarmed.

I've wanted to find the legislative history on this statute for a while and write a law review article on how its discriminatory nature makes it unconstitutional. I'd be happy if they just repealed it instead.

Indiana Parking Lot Bill

Indiana has a bill pending that would allow employees to keep a firearm in their car on the employer's parking lot. Caleb has the rundown with some relevant links from Oklahoma, Florida, and the Department of Labor.

Weapon of Mass Destruction or Sawed-Off Shotgun? Yes!

Tam has a post up on the somewhat goofy terminology statutes use to define explosives. A man in Arkansas set off a car bomb and was charged with use of a "weapon of mass destruction." Same with the Undie-Bomber. No nukes involved in either case.

I'll give you one better. North Carolina defines a litany of things as a "weapon of mass destruction" - including short-barreled rifles and shotguns. It's not a post-9/11 development, either. Here's a pre-9/11 case interpreting the statute on appeal.

Mayor Bloomberg's Blueprint for Gun Control

Pretty scary stuff - Bloomberg's plan is to push the regulatory powers over firearms to the max, which doesn't require a vote in Congress. Via Sebastian at Snowflakes in Hell.

Link Rodeo 8/28/09

Rock, paper, scissors. Real gun trumps nail gun.

ATF changes its mind and will consider permanently attached 1.5" muzzle brakes as part of barrel length to meet the 16" minimum for rifles. In related news, I am not a federal felon.

David Hardy provides a link to the new NRA guide to interstate transportation of firearms and some coverage of the suit against the NYC/New Jersey Port Authority for arresting travelers at airports even though the TSA has said that they are transporting firearms in accordance with federal law.

MSNBC on Open Carry

MSNBC has a reasonably balanced article up on open carry. It starts and ends with an account of the Golden Market shooting down in Richmond, but has a bunch of GOA/SAF/Brady Bunch wrangling in between. On the upside is a parting word from the stop'n'rob clerk from the Golden Market now practicing open carry on a daily basis.

Lead Dispenser

A stakeout in New Jersey turned into a two-way live fire reenactment of the bank robbery scene from Heat. One of the now-deceased badguys used a Mossberg pump shotgun to wound several officers, a couple severely. The Jersey City police chief has some *insightful* commentary:

"We need help to stop these weapons from hitting the street," said Police Chief
Thomas Comey. "This weapon is manufactured for nothing other than to hunt man."

Come on, now. This is the darling of gun controllers everywhere. After all, if you have a pump shotgun, the sine qua non of self-defense firearms according to self-identified gun haters who don't know anything about guns and don't care to learn, you don't need that evil handgun.

This was an argument advanced by the District of Columbia in the Heller case, and one rightly rejected because you can do one critical thing with a handgun that you can't with a shotgun - hold a home invader at gunpoint with one hand and dial 911 with the other.

David Codrea has some related commentary here. Along with a photo of a Mossberg pump shotgun equipped with an ACOG scope meant for engagements beyond 200 meters. Not a setup I use or endorse, but it looks really cool.

The bottom line is that with the right training, any firearm can be an effective tool. Even one with a manually operated action. A lead dispenser is a lead dispenser is a lead dispenser. Allow me to illustrate.

Here's video of Xe's shotgun course and some dude slinging a pump like nobody's business:



Army Marksmanship Unit shooters demonstrating speed reloads:



Practice makes perfect, as the titular competition shooter demonstrates. If you compete in cowboy action shooting, you take a stage name. I present the aptly-named "Lead Dispenser."

Reloads



Shooting a Stage



Playing Music With Steel

Open Carrier Plugs Robber/Spree Shooter

Robbery halted by an armed citizen in Richmond. It seems the robber shot the shopkeeper and threw hellfire and brimstone at some customers for being in the wrong place at the wrong time. A friend of the shopkeeper was open carrying a single-action cowboy gun and fired once, dropping the armed robber. While this does fulfill some of the imagery of the "Wild West" gun control propaganda, it's hard to disagree with the result.

VCDL Blog has the inside story:

On Saturday, a violent criminal shot a store clerk, had the customers in the store lined up, and while reloading his revolver told the customers that he was going to kill them all.
Then a person open carrying a single-action Colt .45 came in and shot the criminal in the stomach, saving at least six or seven lives. I received a detailed account from a VCDL member who was at the scene (but not the person with the .45).
One of the things I was told is how some of the customers were telling the police that the open-carrier was a hero and how he saved their lives.
If that's not being a first-responder when no one else was there to help, I don't know what is.

It appears that the would-be bandit will be charged with attempted robbery, use of a firearm, and (predictably) possession of a firearm by a felon.

America Going Green

Well, on this map anyway. Uncle reports that the Arizona governor has signed into law a repeal of their restaurant carry ban. Arizona goes green on September 30, Tennessee just went green, and hopefully Virginia will follow suit by this time next year.

41 states allow restaurant carry of some kind; this will make it 42. Kind of puts into perspective that whole "guns in restaurants = booze-fueled mayhem" claim that gun controllers keep pushing.

Powerful Stupid

Robb links to an Examiner column on the Second Amendment, by some guy in New York who claims that the Second Amendment never intended to protect an individual right to keep and bear arms. More nonsense in his earlier article.

Totally ridiculous. He engages in an ahistorical history lesson to tell us that the Founders meant arms for military service only when they clearly didn't, cites one retired justice for the proposition that the Second Amendment doesn't protect an individual liberty, and parses the words of the Second Amendment to say that they have a clearly military meaning.

Heller put all of these kooky revisionist history theories out to pasture. This is flat Earth theory at its finest.

Had he been present at the Constitutional Convention and pushed this viewpoint, one of the Founders would have hauled off and shot him.

Related: I previously wrote on how a militia-centric view of the Second Amendment would not have the effect that gun control proponents think it would.

Where do the Barretts Come From?

The eeeevil .50 caliber Barrett sniper rifle is demonized regularly when gun control advocates are pushing for new gun laws to save our neighbors across the Rio Grande. Here's some representative hysteria from the Violence Policy Center. The LA Times has had better coverage than most, and the article at the link mentions all of the black market guns not coming from the US.

Where could these things be coming from? Perhaps these guys have an idea:


Here's the original link: http://www.daylife.com/photo/0gOz0x9ahZdAz

Caption: Mexican Army elite troops shout military slogans during the Independence Day military parade in Mexico City, Tuesday, Sept. 16, 2008.

Large numbers of Mexican soldiers have defected to the drug cartels and taken their weapons with them. 150,000 in the last six years. These guys have access to Barretts. Connection?

Wherein We All Get Free Rifles And Ammunition

Over at the Coalition To Stop Gun Violence website, there is a post up on recasting the Second Amendment as a mandate for militia service. If executed faithfully, this would be a great idea, since every able-bodied male (probably females too, given sex-discrimination jurisprudence) would get a militia-compatible rifle, possibly a pistol, and a bunch of ammunition out of the deal. This new twist on gun control would actually increase the availability of guns and call into question the validity of any “assault weapon” legislation, since those are exactly the arms required for militia service.

The post says that Heller somehow provides a mandate to register all guns and, a la the Militia Act of 1792, all citizens would be enrolled in the militia. Apparently this is supposed to ban private sales of firearms and stop guns going down to Mexico.

A faithful return to the militia model of the early Republic won’t happen. However, the idea merits some discussion. I will cover the firearm implications, how a reduced standing army might impact our foreign policy, and what this new militia model is really about.

Uniform Militia Firearms (Rifles for Everybody)

When you read the Militia Act of 1792, you find that a good deal is about dictating force structure and armament of individual soldiers. If we are to move to a Swiss-style militia, this means our firearms and ammunition have to be compatible. And paid for by Uncle Sam if you can’t provide your own.

I’m not pulling this out of thin air. During my time in Afghanistan, I recruited, trained, and led a 128-man force of local militia in combat. I also trained, advised, and assisted three companies (about 200 men) of Afghan National Army soldiers at the Pakistani border.

When my detachment first began recruiting fighters, we had a room full of outdated and decrepit guns in odd calibers and very few magazines or machine gun links to string our bullets together. We didn’t have many bullets either.

My collection of oddball World War II-era machineguns was insufficient. I needed modern calibers, modern rifles, and compatible magazines. A renewed citizen militia would need the same.

This mathematical combination of Miller (the government can prohibit unregistered ownership of firearms unsuitable for militia service) + Heller (individuals have the right to keep and bear arms) dictates that privately-owned rifles be compatible with what our soldiers have.

The first requirement is ammunition. Militia rifles must be chambered in standard NATO calibers. If you want to get a large caliber hunting rifle, that’s on your own dime. Pistols would have to be chambered in 9mm or .45. Since these are the calibers the military stocks, we would have these available for citizens to practice with when they attend militia drills.

The second requirement is magazine compatibility. Magazine compatibility for pistols is not a strict requirement; the military purchases pistols from a number of manufacturers. Rifles are a different matter. Citizens would have to be able to feed their rifles with the 30-round magazine designed for AR-15 rifles, which are semi-automatic versions of our standard service rifle.

The other feature (or bug, to some) is that the federal government would provide weapons for those that could not afford them. As David Hardy notes, the Virginia Militia Act did this and the deliberations over the federal law took this into account; it was deemed unnecessary since there were so few men who did not have arms. That is not the case anymore – time for a bailout of the unorganized militia!

Reduced Standing Army

Our new “Homeland Security Militia Reserve Act” would have the advantage of making the United States impossible for a foreign army to invade and occupy. If we returned to the small standing army associated with our nation’s early days, we would also take ourselves out of the world policeman business.

The Militia Act of 1792 made sure we had decent defensive capabilities but limited our ability to engage in expeditionary warfare. The militias called up for the Spanish-American War trained up but many fought their deployment orders because they would be overseas when their mobilization periods expired. Several protested any deployment outside of their state borders.

The federal government responded by passing the Militia Act of 1903, also known as the Dick Act. The Dick Act moved state militias toward our modern National Guard model, with mandatory drills, annual training exercises, and unit inspections by regular army officers.

Later reforms further federalized the President’s control of part-time soldiers. Reserve units are completely under federal control. The National Guard and Naval Militia make up the “organized militia.” Though these are state units, the President trumps the state governor when they are federalized. Perpich v. Dept. of Defense. Able-bodied males and female members of the National Guard make up the “unorganized militia.”

The only units that remain under state control are State Defense Forces, state-organized units often made up of volunteers. Perpich makes the point that even these could be subject to call-up under federal statute.

So, a move to a militia system is a major restructuring of our military and might be a good thing. A return to universal part-time service and the limitations of a real “homeland security” militia make it impossible for us to wage wars of choice. There's no way you could convince the citizen-soldiers that we need to head off to another Somalia or impose peace in Darfur.

The Real Motive

Now that we’ve explored the real implications of a return to the traditional militia model, what is this all really about?

Gun control. This is explicit in the Coalition to Stop Gun Violence post: “There are no libertarian individual rights in a conscript military organization.” Once you own your guns pursuant to the federal militia authority, the chain of command makes gun control pretty efficient.

The problem with this idea is that it misreads Heller. Or doesn’t read Heller. It’s not like the answer is buried in a footnote. You can’t get past the syllabus without finding a flat refutation of this militia model. “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Sorry if the title got your hopes up. I doubt a Second Amendment stimulus is in the works.