Emily gets her ammunition.

Emily Miller has successfully navigated that labyrinthine laws regarding how to legally purchase ammunition in Washington, D.C. The trick is that you can’t. You have to go somewhere else.

The guide says the sale and transfer of ammo is prohibited unless the seller is a licensed firearms dealer. Well, there’s only one legal gun dealer in the District, Charles Sykes, and he doesn’t sell ammo. He just transfers guns.

[...]

The registration packet does not mention the possibility of ordering ammo online. When I explored that route, I found many big retailers don’t ship to the District. [...] It’s not against the law for retailers to send ammunition through the mail to D.C. residents*, but it seems these stores are all afraid of running afoul of the jurisdictions with the stiffest gun-control laws.

Mere possession of a single round of ammunition for a gun you are not registered to own is punishable by up to a year in jail. This has nothing to do with public safety or crime prevention. As Emily says, “What’s the worst I could do with ammo, but no gun? Throw it hard and knock a tooth out?”

Also note how the DC Police feed her misinformation about Virginia’s gun laws. I am convinced that it is done deliberately. They don’t want the peasants to have guns, so they make the process of legally owning one as onerous and fraught with peril as possible.

The other big trick is lawfully possessing and transporting the ammunition.

In Washington, D.C., it is illegal to posses ammunition if you don’t have a gun registered. It is also unlawful to have ammo that is not in the same caliber or gauge as your legal gun. The penalty for holding a round of the wrong caliber is up to a year in jail — as stiff as the punishment for illegal gun possession.

[...]

Officer Harper told me that ammunition had to be transported in a separate container than locked gun and out of reach of the passenger seat. I put the ammo in a bag in the way back of my SUV.I was still concerned about correctly following D.C. laws, but I needed to save a few rounds to take home so that my gun was no longer just an expensive paper weight.

Check out her whole series, “Emily Gets Her Gun“, if you haven’t already. She illustrates just how the gun laws in our nation’s capital are ridiculously restrictive, and place an onerous burden on the exercise of a Constitutional Right.  They need to be abolished.

* One commenter at the article points out DC Code Title 7 Chapter 2502.02, under which it is probably is illegal, but there is the question of whether this DC law can be applied to an out of state retailer. I can understand why the retailers don’t want to find out.

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[Source: Washington Times article by Emily Miller, retrieved 2/28/12]

Second Amendment Foundation challenges interstate handgun sales ban

If you weren’t already aware, even after Heller struck down the handgun ban and onerous firearm ownership restrictions in the District of Columbia, DC residents have still had an unconstitutionally difficult time obtaining firearms. There are no gun stores in DC. Not a single one. In addition, federal law prohibits the direct sale of firearms to people who are not residents of the state in which the sale takes place. Instead, the sale must be handled through an FFL in the buyer’s state of residence – this requires an additional fee to an FFL willing to conduct the transfer. Until recently, there has been only one FFL in DC willing to do so.

Now there are none.

Since the lifting of the handgun ban in June 2008, Charles Sykes has processed more than 1,000 handguns for District residents. Sykes tells WTOP he’s stopped taking orders for now.”I’ve lost my lease,” Sykes said in a phone interview. “I’ll take care of the customers who already placed orders, but I don’t want to take any more until I know where I will reopen.”

Sykes is the sole proprietor of C S Exchange, the only licensed firearm dealer in the city that will transfer guns for individuals. Sykes doesn’t sell the guns — there are no gun stores in D.C. His company facilitates the transfer of guns from out of state stores into the District for a fee of $125 per gun.

DC’s zoning regulations, and specifically the restrictions on where a business dealing in firearms can be located (the linked story has a map), are making it extraordinarily difficult for him to find a new location.

Zoning regulations require gun dealers to locate in either a commercial zone or industrial zone. Most of the District is either zoned for residential use or is federal land. There is also the added restriction of dealers not being able to open a shop within 300 feet of any home, church, school, library or playground.

And once he finds an available lease, he still has to have the location approved by three separate government agencies: the ATF, the the Metropolitan Police Department, and the District’s Office of Zoning. There’s no guarantee that any new location will be approved by all three.

In fact, there is another FFL in DC who is willing to do transfers – but he’s been trying without success since 2008 to find a location.

Kevin Shepard owns Second Amendment Safety and Security, and has had a Federal Firearms License since 2008, but has not been able to find a location to open his business. He says the zoning requirements are too restrictive.

With the closing of C S Exchange, this now amounts to a de facto ban on firearms purchases by DC residents. So the SAF has stepped in.

The Second Amendment Foundation today filed suit in U.S. District Court in Virginia challenging the constitutionality of federal and Virginia provisions barring handgun sales to non-residents.SAF is joined in the lawsuit by Michelle Lane, a District of Columbia resident who cannot legally purchase handguns because there are no retail firearms dealers inside the District.

[...]

“This is an important issue in the era of the national instant background check,” said SAF Executive Vice President Alan M. Gottlieb. “The NICS check should allow law-abiding citizens like Miss Lane to exercise their Second Amendment rights regardless their place of residence.”

“Americans don’t check their constitutional rights at the state line,” said Gura. “And since Michelle Lane is legally entitled to possess firearms, forcing her to seek a non-existing D.C. dealer to buy a handgun is pointless when perfectly legitimate options exist minutes across the Potomac River.”

“The Supreme Court has ruled that District residents have an individual right, protected by the Constitution, to have a handgun in their home,” Gottlieb noted. “The high court has also ruled that the Second Amendment applies to the states. Existing state and federal statutes violate both the spirit and letter of recent court rulings and the Constitution, and our lawsuit seeks to remedy that situation.”

This is an important point: The NICS is a national background check, the availability and results of which do not rely on one’s state of residence. Why should people be forced to have it done by an FFL in their home state, when the results would be exactly the same if it was done by any FFL in any other state?

But more important is the fact that this restriction means that DC residents who do not already own a firearm are banned from exercising a Constitutional Right based simply on the uncontrollable occurrence of one business losing it’s lease – something the city cannot guarantee will not happen again even if he finds a new, approved location tomorrow.

Alan Gura should be awarded the both the Presidential Medal of Freedom and the Congressional Gold Medal for his actions in restoring the true meaning and supremacy of the Second Amendment (not that it will happen with the current administration). But even with everything he’s done, there’s still a long way to go. Support the SAF.

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(h/t SayUncle)

VA Attorney General rules on guns in church

First, for my non-Virginia readers, a little background. Carrying a gun in church, concealed or not, is not illegal per se – but it is governed by a very vague statute (Code of Va. § 18.2-283) which essentially leaves prosecution open to the prejudices of any officer that is called for or witnesses it. That statute reads:

If any person carry any gun, pistol, bowie knife, dagger or other dangerous weapon, without good and sufficient reason, to a place of worship while a meeting for religious purposes is being held at such place he shall be guilty of a Class 4 misdemeanor.

The key to carrying in church being legal rests on one phrase, “good and sufficient reason”. What constitutes “good and sufficient reason” is not specifically defined anywhere in Virginia law.

My take has always been (keeping in mind that I Am Not A Lawyer) that the key phrase essentially makes the statute unconstitutionally vague. What is a good and sufficient reason for one person may not be good and sufficient reason for another. For example, imagine if the interpretation of that phrase were up to Joan Petersen. No reason at all, including God, Buddha, Ganesha, and Cthulu, all appearing together in front of her and explaining that I must take my gun to church or the human race will face a thousand years of untold pain and suffering, would be “good and sufficient reason”. After all, if there’s a gun in church, there might be a Gun Death(tm), and that is absolutely unacceptable to her – a thousand years of untold pain and suffering for the entire human race would be preferable!

Even if it’s not unconstitutional due to vagueness, there is still that lack of definition to overcome. What is “good and sufficient reason”? My second opinion (again, IANAL) is that – in the absence of an actual definition – “any lawful purpose” is “good and sufficient reason”.

Fortunately, we now have at least an official Attorney General’s Opinion (PDF warning!) stating that carrying for self defense satisfies the “good and sufficient reason” requirement. From Phillip Van Cleave in a VCDL email:

Attorney General Ken Cuccinelli has formally ruled that self-defense is considered “good and sufficient reason” for the lawful carry of handguns into a church during a service!  (Good and sufficient reason isn’t needed at other times.)  The ruling also stated that churches, as private property, can ban or restrict such carry (which is consistent with Virginia law and would make for a trespass charge if violated).

[...]

NOTE:  This is an Attorney General’s opinion.  It carries a lot of weight, but is not law and is NOT a GUARANTEE that a judge will agree.  In PRACTICE, however, this should pretty much settle the matter, especially if the General Assembly doesn’t overturn it with a change to the law next year (there is about a zero chance of that happening).

While not completely settled law, this is a great boon that will hamper any anti-gun police officer or Commonwealth’s Attorney who tries to take advantage of the law’s vagueness. It would be preferable for the law to be repealed completely, but this is a step forward. It’s also worth noting that Cuccinelli’s opinion quotes from the Heller decision, rather than resting only on Virginia’s Constitution and laws. Virginia’s churches are no longer “maybe, maybe not” victim disarmament gun free zones under the law – it is now up to each individual church to make that decision.

Which is just as it should be.

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What do the courts do, again?

I recently stumbled on this anti-gun article by way of Hecate’s Crossroad, talking about how feminists should be anti-gun, because guns are responsible for domestic violence, or some similar totemic drivel. Of course, as an anti, the author completely overlooks how guns can allow a woman to defend herself against a larger and stronger attacker. Hecate does a pretty good job of demolishing the author’s reasoning.

Whenever somebody tries to tell me what to do or how to live my life, I immediately look to their motivations. What do these people stand to gain if I comply with their direction? What do they stand to lose if I don’t?
In the article linked above, the recurring theme is “women are victims who must be protected.” The sources of this “wisdom” are uniformly women-advocacy and victim-advocacy groups. In other words, organizations who would not exist if not for women and victims incapable of acting on their own behalf.

I can’t really do a better job than she did, so I’ll just say go take a look for yourself.

I did, however, want to hit on another part of the article. It’s really just one sentence, but it shows a serious misconception of our court system that seems to have begun to pervade the public perception.

If the courts see little public sympathy for gun regulations, they are unlikely to take the unpopular stance of defending them.

What is wrong with that statement? Can anyone tell me? Anyone? Bueller? Bueller?

How about this - the courts’ job is to rule based on the law and the Constitution as they are written, and their perception of public sympathy should have no impact on their decisions.

This is why the founders made Supreme Court Justices appointees for life – to insulate them from public opinion. The Executive and Legislative branches are already subject to public opinion by way of the election process. Congress and the President are the ones who can – and should – be swayed by public sympathy for or against laws and regulations. The Supreme Court, on the other hand, is isolated from the fleeting whims of public opinion.

One of the most important, and least known jobs of the courts is to act as a shield against oppression of the minority by the majority. The Constitution is one of their most important tools for doing so. If all is operating as it should, public opinion can sway the courts only by way of the legislature, or by Constitutional amendment.

The legislature is, of course, fairly easy – but legislatures cannot simply override the Constitution, and a law that is unconstitutional is not valid. A Constitutional amendment is a deliberately difficult and drawn out process, made so in order to outlast the whims of the mob and prevent abusive or ill-conceived amendments. It’s not perfect – the 18th Amendment was a good example – but in general it works well, allowing flexibility when needed but encouraging stability at all other times.

If the courts stop adhering to the laws and the Constitution as they are written in favor of following the whims of the mob, then our system will have stopped working altogether, and chaos will surely follow.

Obama gets his first Supreme Court pick

Justice David Souter is retiring at the end of this term in June.

This likely doesn’t change much. He’s been one of the reliably liberal justices, and Obama will likely choose another liberal. On the other hand, justices often end up surprising even the presidents who chose them.

The Dems now have (or they should by that point) a filibuster proof majority if the votes break down along party lines, so he’ll probably get whoever he wants unless there’s something seriously wrong with whoever he nominates (like they haven’t paid their taxes, or som… Oh. Right.).

Souter joined both dissenting opinions in Heller v. DC, and I’d be willing to bet that one of Obama’s “acid tests” for any nominee will be about guns, so from a gun rights perspective there’s little hope for a positive change,* and we’re probably looking at the same thing for most other key “conservative” issues, too. By the same token, there’s not much risk for a negative change, either. Barring any surprises, this does not seem to be a game-changing vacancy.

* I did not do that on purpose. On the other hand, I left it there when I noticed it. [bugs bunny voice]Ain’t I a stinker?[/bugs bunny voice]

On the whole Plaxico Burress mess.

Xavier has a post up with his take on Plaxico Burress. While I agree that Plaxico is a complete idiot, and a thug, I have to disagree with the overall thrust of the post, which seems to be that we should let him hang (figuratively) for what he did, and that he should not be allowed to use the Heller decision to challenge the law he’s being charged under. I urge you to read his post, and my comment, which I’m also posting here because it sums up my position fairly well.

I’m afraid I have to disagree with you on this one, Xavier. If you believe the law he broke is unconstitutional, then his motivation, knowledge, intent, recklessness, stupidity, and arrogance should all be irrelevant. He has the same right to challenge the law on Constitutional grounds as anyone else. His money simply gives him a better ability to do so, and his fame is what brought it to our attention. Right or not, that is the way it is.

Heller does apply, not because it applies to him, or to the situation, but because it applies to the law that he is being charged under. If New York’s law equates to a de facto ban on handguns, it is unconstitutional under Heller, and a persons reasons and intent are irrelevant. Even if he was carrying it so that he could go kill someone later, he still should be able to challenge the law in question. An unconstitutional law should be challenged at every possible opportunity.

Is Plaxico Burress an ideal person to be doing this? No. Is he one of us? Heck no. Should he be charged with other crimes? Yes, he should be charged with criminal negligence, reckless endangerment, making false statements to police, and (if it’s in New York’s laws) carrying a firearm while intoxicated. He’s an idiot, and it’s only blind luck that no on else was injured or killed.

You said “If he decided to go, he did not need to carry a gun.” Since when is need supposed to be a requirement to exercise one’s Second Amendment rights? Since when is the lack of ability to hire bodyguards, or the lack of “other options” supposed to be a requirement to exercise one’s Second Amendment rights?

It is not about “bend[ing] the law unjust when the man who caught the winning touchdown in the 2008 Super Bowl violates it” or for getting him “preferential treatment in a court of law.” It’s about striking down an unconstitutional law. To paraphrase your own conclusion, “The Constitution is simply the Constitution, and it applies to New York City.”

*Please note that the “stupidity” label for this post is for Plaxico Burress’s stupidity, not Xavier. I have nothing but respect for Xavier, and I don’t think he’s stupid, or even being stupid in his post.

Heller, Round 2!

Really, who didn’t see this coming?

In a complaint filed Monday in U.S. District Court, Dick Heller and two other plaintiffs allege that the city’s new gun regulations still violate rights guaranteed under the Constitution.

h/t to David Codrea at The War on Guns.

A Missed Point About Heller

I never got around to posting an analysis of DC v. Heller. There have been so many others on the web who have, and have done a better job than I probably could, that I just didn’t do it. (And I succumbed to a bit of Heller “burnout” reading so many of them.) But there’s one point I’ve noticed missing from most of those otherwise excellent blog posts. I’ve mentioned it in a couple of comments, but haven’t really seen it anywhere, so here it is:

Heller will eventually lead to a ruling that a state may prohibit either open carry or concealed carry, but not both.

There are two key passages:

As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

and:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

DC v. Heller, 554 U. S. ____ (2008), p. 56-57, (PDF p. 59-60)

Heller dealt only with carrying firearms within one’s home. However, by so inextricably joining the 2nd Amendment to the right to self-defense, the Court has left the door wide open to a future ruling that some form of carry (open or concealed) must be allowed outside the home as well. This follows from the simple fact that a person’s right to self defense does not end when he leaves his home. There is ample case law supporting an individual’s right to self defense, and most of it deals with situations where the individual in question is not at his home or place of business.

From this it is simple. If I have the right to self defense outside my home, and that right is “central to the Second Amendment right,” then a law restricting my Second Amendment right only to my home cannot be constitutional. I have that right in any place that I have the right to self defense.

DC v. Heller – First Impressions

Not done reading it yet, but I am done for today. I prefer to hold my comments until I’ve read the whole thing, and this one is 60+ pages for the majority opinion, and 157 pages total!

Preliminary opinion, based on the syllabus, what I’ve read so far, and what I’ve seen on other blogs? More good than bad: it established the 2nd Amendment as protecting an individual right, which is very important, and gives lower courts a good starting point. On the other hand, it does not rule out licensing and/or registration. On the gripping hand, for jurisdictions that do require licensing and/or registration, it seems to say that only shall-issue would be constitutional.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

District of Columbia, et al. v. Heller, Slip Op., p. 64 ( p. 67 of the PDF) (emphasis added)

Additionally, while the majority does not specifically address the scrutiny issue, footnote 27 is promising because it outright rejects rational basis scrutiny.

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Heller, Slip Op., Footnote 27, p. 56, 57 (p. 59, 60 of the PDF)

While footnotes are considered dicta, footnotes in a Supreme Court majority opinion are often considered more binding than circuit court decisions, and are usually given more weight by lower courts than the dissenting opinion in the same case.

Well, that’s more than I planned on getting into tonight. More later this weekend!

Heller Affirmed!

The Supreme Court affirmed the D.C. Circuit Court’s decision in Heller.

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.

DC v. Heller, Syllabus, Available here.

More after work.

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