Category: Legal

Thoughts on Incorporation

First off, I’m not a lawyer, nor do I play one on the internet. If I’ve seriously screwed something up, please don’t hesitate to let me know.

  1. After the 9th Circuit ruling, the Second Amendment is incorporated in some, but not all, states. One of these is California (when do the lawsuits start again?). Personally, I’d love to see the oppressive anti-rights laws there overturned, whether about guns or not.
  2. After the 7th Circuit ruling, the circuits are now split. This is evidently a Bad Thing(tm), and it’s likely that this issue will go to the Supreme Court.
  3. The pro-rights side won the Heller decision by a narrow margin: we got 5-4 for a revolver in the bedstand, but it was too close for comfort.
  4. After Heller, we’ve had the momentum on our side. The anti-rights groups are on the defensive. Let’s keep it going.
  5. If Sotomayor gets appointed to the Supreme Court, all is not lost: the overall makeup of the court would remain the same for the reasonably-foreseeable future. If we could swing Heller, it’s likely that the Supreme Court would rule similarly for incorporation, particularly when it’s pretty clear that gun control doesn’t really do much to prevent crime.

Honestly, I don’t see how one can argue against incorporation of the Second Amendment (or any other amendment, for that matter) with a straight face. I find the very notion absurd: the right to keep and bear arms extends directly from the natural ((As I’m not religious, I don’t believe in “god-given” rights.)) right to self-defense that any living organism possesses, why should it only apply to certain people living in a specific, arbitrary geographic area of the US?

Ignorance of the Law is No Excuse

I think we can all agree that if ignorance of the law was an excuse, we’d get a lot more people falsely claiming ignorance in order to shirk responsibility for their crimes.
However, such a policy also requires that people are, in fact, aware of the law in question.
Essentially everyone knows it’s illegal to exceed the marked speed limit on a street (though enforcement of such laws is often given a bit of wiggle room), it’s illegal to assault another, rob banks, or other such actions. Knowledge of such laws are common.
In many cases, however, people aren’t aware of specific laws — such a law may not be something that a reasonably person might expect to exist (as opposed to, for example, a law against robbing banks), or the law may have recently been changed.
For example, it’s my understanding that using lead shot while hunting waterfowl is illegal. While not exactly common knowledge outside of the waterfowling community, all the bird hunters I know are well aware of the prohibition. However, how many people are aware that the use of lead ammunition if illegal in wide swaths of California (evidently to protect condors from ingesting bullets and getting lead poisoning)? There’s a lot of people who have been shooting regular lead ammo in California for decades before the law changed — the passage of such a law is not exactly common knowledge (it wasn’t reported in the media), and many of these shooters don’t subscribe to any newsletters, blogs, publications, or other means of learning about such a law. Very few people wake up in the morning and think, “I wonder if shooting lead ammo is still legal. I should check.” Unknowningly, these people become criminals when they go out to the woods to shoot as they had for decades.
Same thing with so-called “assault weapons” in California — when the state changed the law to require registration (and eventual prohibition) of such guns, very few people complied. While I’m sure that a not-insignificant number of shooters said “Screw that.” and didn’t bother registering out of idealogical reasons, I’d imagine that most gun owners were simply unaware of the law and remain unaware to this day as nobody has made them aware of the law, and they wouldn’t ever think of checking as the concept of a ban based on cosmetic features is so non-common-sensical that the thought would simply never occur to them.
When the ATF has to split California’s gun laws into two parts because they’re so numerous, I think that exceeds some sort of threshold. The average person should not need to consult a lawyer to ensure that their everyday actions are not in violation of some law that they’ve never heard of.
While ignorance of the law isn’t an excuse, such a policy requires that the average person can reasonably be expected to know the law. With the huge amounts of laws covering the minutest aspects of one’s life, I don’t believe it’s reasonable that an average person be expected to know every single law.
What can be done? Repealing onerous, obscure, or obfuscated laws seems…unlikely. Sending citizens an annual list of laws that apply to them will simply waste money for printing and postage; even if someone did read all the laws in such a document, it’s unlikely that’d be able to read all of them before the next edition arrives. If they did manage to read them, it’s unlikely they’d understand them all or how they apply without consulting a lawyer. Any sort of simplified “Legal FAQ” is likely to leave out information that applies to some groups.
Honestly, I’m not sure how things can practically be made better without some fundamental change in the law (see the aforementioned repealing of various laws).

Bam!

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

– United States Court of Appeals for the 9th Circuit in this ruling.
Dave Hardy has more.

BOHICA

As I used to be a Californian, I still keep up to date on happenings from my old state.
The NRA sent out the following notice today:

Senate Bill 776, sponsored by State Senator Loni Hancock (D-9), has been introduced in Sacramento.? The bill has been assigned to the Senate Public Safety Committee and could be heard on Tuesday, April 21 or Tuesday, April 28.
Simply put, SB776 would mandate the registration of all magazines capable of holding more than ten rounds of ammunition.? The possession of unregistered magazines would be a crime and punishable up to a year in prison.

Not this crap again.
California’s prohibited the purchase or import of magazines with a capacity greater than 10 rounds since 2000 or so, which was in the middle of the now-expired federal AWB. I’ve not seen a single magazine that has a serial number or some other unique marking that could be provided to authorities.
In addition, they implemented rather draconian restrictions on scary-looking guns: new ownership is prohibited, transfer is prohibited (even if the registered owner dies) — the gun must either be removed from the state or destroyed. Of course, not many owners of such firearms bothered to register their guns.
The guns themselves are already heavily regulated, as of January 2010 all handguns must be equipped to apply microstamps to cartridge cases, and proposals to regulate, register, or otherwise restrict ordinary ammunition have also been proposed. In short, California has some of the most onerous gun laws in the nation.
What legitimate reason do they have for wanting to register magazines? What purpose would registering magazines serve? I can’t think of a single one. Criminals are already prohibited from owning guns, and the Fifth Amendment enables them to avoid registration of guns or magazines due to the fact that it would cause them to self-incriminate.
Of course, any registration or prohibition of magazines would be utterly useless: California borders Oregon, Nevada, Arizona, and Mexico. The first three states have essentially no limitiations on magazines, and Mexico’s just a free-for-all. Criminals would have no problems acquiring magazines, regardless of any restrictions in California. Once again, only law-abiding citizens would be affected.

Good Lawyers

It’s regularly advised on various gun-related forums that gun owners should have the contact number of a good gunny-friendly lawyer to call in the unlikely and undesireable event that one is needed. Better safe than sorry, right?
Does anyone have any recommendations for such lawyers in the Tucson and Chandler areas? Ideally, they’d have some number one could call day or night in the event that they’re needed. I tend to avoid lawyers and other legal-related stuff like the plague.
That said, I don’t have any particularly need for a lawyer (I’m not in any sort of legal trouble), but I’d like to have one on call just the same. Preferably one that’s not shady.

Deadly Hands

One of my cow-orkers (sounds so much worse than co-worker, right?) studies Mixed Martial Arts. He claims — to my hearty laughter — that if he were involved in some sort of fight, and came before a court due to said fight, he might receive a harsher sentence due to his hands being “deadly weapons”.
Now, I’ve heard the age-old myth that the hands of professional boxers, trained martial artists, etc. need to be “registered as deadly weapons”. Of course, this is bunk. A brick could be a deadly weapon, yet one is not asked to register it. Indeed, I own numerous firearms and I am not asked to register them. Would the TSA require the removal and checking in the cargo compartment of one’s hands prior to flying? As I said, an absurd myth.
He claims that laws in several states allow for hands to be classified as deadly weapons, and the owner of said hands can be penalized for using them in violent acts. In the age old tradition of science, I told him “cite or GTFO” (also known as “prove it”). He has yet to come up with any sort of facts on the matter. Would any of my readers have any information readily at hand (no pun intended) that would indicate the facts either way?
I could believe that someone might be charged with “assault with a deadly weapon” if they used their fists and had some disproprortionate advantage, such as great size or strength, compared to their victim, but I doubt that your average person, even a martial artist, would be charged as such if they were caught fighting by the police.

Legalized = Taxed?

Whether people are talking about legalizing marijuana (which I support, even though I’ve never touched the stuff) or opening the NFA registry, it seems that everyone says, “Legalize it, then tax it.”
Personally, I’m in the “legalize it” camp, but not so much in the “tax it” camp, particularly when it comes to “sin” taxes…which I wish didn’t exist. Taxes should serve a specific purpose: I pay taxes on gasoline, and that revenue goes to maintaining roads, streetlights, and other infrastructure. I’m fine with that.
How does an NFA or marijuana tax serve anyone?
If the law requires that NFA items be registered with the ATF, I understand that it will cost a little bit of money to process each registration, and I could understand a processing fee that would cover that cost. At most, that should cost around $50. It’s essentially data entry. A re-opening of the NFA full-auto registry may prompt a spike in registrations, but even if they collect a $50 fee per item, the ATF would likely still be covering their costs (government isn’t supposed to make money).
Similarly, subject marijuana to the same sales tax, if any, that other purchases get subjected to. Same thing with alcohol and cigarettes. If the taxes are prohibitively high, then nobody will bother with paying them, and will instead buy things on the black market.
I understand the whole “legalize it” mindset, and I can understand the “regulate it” mindset (so as to ensure that products like marijuana are not adulterated with harmful chemicals, see China) to some extent, but the “tax it” mindset? I just don’t see how that benefits anyone except those who collect the tax.

Heller sues DC

Story here. Note that it’s “Heller v. DC”, not “DC v. Heller”. Heller’s the plaintiff this time. 🙂
The article’s a bit short, but my understanding is that DC has done everything possible to not change anything, including bans on semi-automatic pistols, insisting that people keep their guns locked up and disabled (defeating the whole point of having a gun ready for self-defense), having obnoxious registration, licensing and ballistic fingerprinting requirements, and so forth.
Best of luck to Mr. Heller. More as I get it.
(Hat tip to Sebastian.)

I guess “gun free” zones don’t work…

A 22-year-old Phoenix man shot three people yesterday. Fortunately, nobody was killed and the three victims were hospitalized with non-life-threatening wounds.
The incident took place at the South Mountain Community College, a “gun free zone”.
When will people wake up and realize that laws, rules, and regulations proclaiming an area to be a “gun free zone” are barely worth the paper they’re printed on?
The only people guaranteed to be at the scene of a violent crime are the perpetrator(s) and the victim(s). Since the criminals seem to have no qualms with breaking various serious laws (for example, attempted murder) and surely would have no problem with violating a relatively minor law (for example, a prohibition against possessing guns in a certain place), it only makes sense that potential victims of crime should be allowed to possess the means to effectively defend themselves.
Of course, society should seek out and address the root causes of violent crime and work to rectify them, but that’s a long-term, utopian goal that provides little comfort or relief to someone being confronted by a violent criminal right now.
As they say, “when seconds count, the police are only minutes away”.
Hat tip to the AZCDL.