Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the gray twilight that knows neither victory nor defeat.

Theodore Roosevelt, The Strenuous Life

May 25, 2013

Firearms, Opinion

Comments Off on Too Few Firearms in London?

This week an extremist British citizen used knives and other bladed weapons to kill a British soldier. This was a daytime attack in public, with innocent spectators merely watching. Of course, the British, being duly civilized, had no guns available to stop the attacker. The citizens cannot carry guns nor have them at the ready in their homes. Even most of the police are unarmed; only a few armed police units are available. Reports vary on how long it took for armed personnel to arrive. The quickest time I heard (NPR) was 13 minutes. But we know the medics and unarmed police arrived first. And there are reports that an armed response took as much as 30 minutes. Whether an armed response occurred 13 minutes after the initial call by the public, or 13 minutes after the first responders arrived is unknown.

The British have done an excellent job of what American progressives think needs to be copied in the U.S. They have disarmed their citizens, and even most of the cops, to assure that the hoodlums, criminals, and bad guys have free reign to do harm. When attacks like this occur, or the Norwegian massacre of a few years ago, or the Newtown massacre, the facts point to faulty strategies for safety and survival by the victims, their guardians, and their governmental officials. Most of the gun control reforms proposed after Newtown confirm this view; there was almost no nexus between the legal changes proposed and the causes for the atrocious crimes committed. Fortunately, many of us understood that and made it known to our legislators, causing most of the proposed changes to fail.

May 20, 2013

Firearms, Opinion

Comments Off on Remember The Guns Chuck Schumer Used to Try to Ban?

Back in the day when Chuck Schumer was a congressman from New York State, he regularly aligned with the likes of Ted Kennedy to ban an ill-defined group of handguns called “Saturday Night Specials.” He must have thought ridding the world of light-frame double-action revolvers and small, easily concealed inexpensive autoloaders would make us all safer. After all, thugs preferred these guns. The logic was really quite astute. If you couldn’t get a permit for carrying a gun, and decided to carry a large one anyway because small ones were no longer available, the cops would notice you leaning on your heavy side with a big bulge under your leisure suit.

I wonder what changed? Now Schumer is trying to ban guns and magazines that are basically too large to conceal, and cost north of $1000. The answer is simple. Anything that will sell to folks who oppose the private ownership of firearms, who know little of them, do not understand why owning a firearm is a fundamental and inalienable right, well that is good with Mr. Schumer. He cares little about principles, what the law is, etc.

And I do not mean this as antisemitic, but why do so many urban Jews support the notion of not having meaningful access to firearms? Certainly it was not in the best interest of the Jews that Adolph Hitler disarmed the Jews in the thirties. How can a people so abused by various governments throughout history oppose an inalienable right for them to carry useful protection from harm? It is an utterly astounding position.

May 18, 2013

Firearms, Opinion

Comments Off on Is The United States a Free Country?

This post was sparked by an article concerning a study of countries for attributes of freedom. The study concluded that the ease of owning a gun does not correlate with freedom. Based on the false premise of the study, this finding is easy to believe. Countries like England, Canada and Australia have very few citizen rights with respect to firearms, and most commentators repeat the old rhetoric that these countries remain free.

There is no indicator for freedom better than exercise by citizens of their right to bear arms. Perhaps freedom of speech is a close proxy, but it is harder to measure due to various degrees of that freedom.  Firearms are a strong indicator of restrained government. The right to own handguns and carry them about correlates well with the American notion of freedom. So are we doing well in the United States with the best measure of freedom? A simple yes is not possible for all of us. Here are some facts to ponder:

Of the 50 states and the District of Columbia, 35 state laws are “shall issue” with respect to handguns, and five states (Alaska, Arizona, Arkansas, Vermont and Wyoming) allow concealed carry without a permit. Approximately 210 million people live in these 40 states, or two thirds of the population.

The “may issue” states are roughly Alabama,  California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, and New York. The other jurisdiction in this group is the District of Columbia.  Three states of this group issue permits to qualified persons: Alabama, Connecticut and Delaware. I cannot verify that this will remain so with Connecticut’s new law. The reason this list is called rough are numerous. Illinois has no concealed carry law. To satisfy an order of the U.S. Court of Appeals for the Seventh Circuit, the legislature is working on a law that will likely be a restrictive “may issue” law. There are some states and jurisdictions where a citizen cannot acquire a permit to carry in public regardless of character, wealth or any other attribute – permits for the average citizen to carry a weapon in public will not issue. They are New Jersey, Maryland, Hawaii, New York City and Washington, D.C.

It is fair to say some portions of the United States are free. Other jurisdictions, fortunately a minority, are paternalistic and allow very little power to remain with their citizens. To say those citizens are meaningfully free is something I fail to understand.

P.S. Alabama will soon become a “shall issue” state. That leaves only 9 states and the District of Columbia with laws that restrict the fundamental right to bear arms excessively. (5/25/2014)

P.P.S. The governor of Illinois, Pat Quinn, has a “shall issue” bill on his desk now. He is reluctant to sign it. We will see what happens, but I am sure the pressure on him from both extremes is incredible. Of course, he needs to sign this and make this well negotiated and strong bill a law. The extremists in the legislature negotiated in good faith at developing a bill that requires training for permit holders; is “shall issue,” but with a safety valve allowing the police to stop issuance; and provides a due process hearing for those subject to non-issuance. Illinois law could be close to a model bill for states, especially those with “may issue” laws.

P.P.P.S. The governor of Illinois partially vetoed the bill, but the legislature overruled his veto! Illinois is now a shall-issue state, making the total 42. Progress.

 

 

December 23, 2012

Firearms, Opinion

Comments Off on Getting by If 15 Round Magazines Are Once Again Restricted

I purchased my Glock Model 19 between 1994 and 2004, when 15 round magazines were not manufactured for private ownership in the United States. It came with two ten-round magazines. There were numerous solutions to get around the restriction, all of which I embraced when I carried a firearm for personal defense, such as in the woods near my home.

1. I purchased after-market 15 round magazines that had been manufactured before the ban. This was lawful. Most of these were plastic, but they work well.

2. If I wanted more than 10 rounds using 10 round magazines, I carried a second firearm. The back-up gun improves reliability compared to a single high capacity magazine anyway.

I generally carry my Glock with 13 rounds, one chambered and 12 in the magazine. Keeping no more than 12 rounds in the magazine keeps the magazine spring from being fully compressed, likely leading to the automatic loading of the round being slower but more reliable than with a fully compressed spring. Also, the life of the spring is improved.

For loading my personal defense pistol, the chambered round is a hollow point. The next one up is a round point to decrease the probability of a jam, which is low in Glocks anyway. Then I alternate.

You might ask why I carry with a round chambered. I am confident in the Glock design; it will not fire unless the trigger is pulled. Also, my holsters cover the trigger and my firearm is holstered when I carry it.

December 22, 2012

Current Events, Firearms, Opinion

Comments Off on Firearm and Homicide Statistics

The massacre in Newtown, Connecticut has brought out the gun control extremists, people like Dianne Feinstein, who is either very naive or believes the citizens of the United States are extremely gullible. With all the renewed demands for a new ban on semiautomatic firearms and high capacity magazines, I thought it wise to check some statistics. I compared homicide data in the United States with the same information from Canada. I chose Canada because its gun laws are very restrictive and its homicide rate is similar to those found in the western European countries, where severe restrictions on ownership and carrying of firearms are common.

The United States has a homicide rate of 4.8, which is 4.8 deaths per hundred thousand population. Roughly two-thirds of those deaths are with firearms, mostly handguns. Long guns (rifles and shotguns) accounted for only a few percent of homicides. No reliable statistics are available for homicides by what were called assault weapons, but some analysts use homicides with rifles as a proxy for homicide by assault weapons, and conclude that homicides with assault weapons do not exceed 2 or 3%. Approximately half of all homicides are by black Americans. The homicide rate has declined for several decades, even after the 1994 to 2004 assault weapons ban expired. Homicide rates are very high in some American cities, such as Detroit, New Orleans, Newark, and Washington, D.C. Homicide rates are generally lower in places where carrying guns concealed is not highly regulated, although this is not a perfect correlation. Washington, D.C. is very restrictive on concealed weapons and has a high murder rate; New York City is also very restrictive but follows national norms on homicides.

Canada has a homicide rate of 1.6, with one-third caused by firearms.

Recall that half of homicides are committed by black Americans, who comprise a little more than 13% of the U.S. population. Normalizing for that disparate contribution and assuming that this group should contribute to homicides at a rate no greater than other Americans, I calculate a homicide rate equal to: (4.8/2) + (0.13)(2.4) = 2.7

Adjusting for the disparate affect of black homicides in the United States, and subtracting all firearm related homicides in both the United States and Canada at the Canadian rate of one third (assuming U.S. laws became equally restrictive, and that there was no substitution of weapons for those murders), you get a homicide rate of 1.1 for Canada and 1 .8 for the United States. You can draw conclusions about differences between Americans and Canadians from the statistics:

The American homicide rate would likely be greater than that in Canada even if Americans had the same laws concerning firearms as Canadians. The American homicide rate would be at least 50% greater than Canada’s, suggesting Americans are considerably more violent than Canadians.

The assault weapons ban and its expiration did not seem to affect the steady decline in homicides in the United States and appears to be more aimed at banning weapons in a method most likely to garner legislative support. The ban is not a safety measure; it is a first step in what will be a continuing effort to limit gun ownership in the United States.

Decreasing homicides in the U.S. through restricting firearms rights will require such extensive regulation as to leave the 2d Amendment a useless relic, like the rights in the constitution enjoyed by the citizens of the defunct Soviet Union.

The way to reduce violence in the United States is to do the hard work needed to, well, reduce violence. I am not a sociologist, but that probably means better education systems, more recreational opportunities for youth, better dispute resolution training and systems, better functioning police and courts, better laws (such as making sure the laws on the books are important to safety and are actually applied), better urban and suburban design, more public recreational spaces in urban areas, and more job opportunities for all groups in our society.

February 20, 2011

Firearms, Opinion

Comments Off on Congratulations Anthony Spinelli of NYC!

The New York Times reported last Friday that Mr. Spinelli, a jewelry store owner, pulled a gun from the safe he was forced to open by a robber who was holding a gun on Mr. Spinelli. Mr Spinelli chased the three robbers and in doing so, shot one of the derelicts in the leg. The prosecutor has decided not to indict under the criminal statutes of New York State.

Unfortunately, the gun Mr. Spinelli used was licensed in Westchester county, not NYC. This is an administrative violation according to the NY Times; my guess is that he will be charged with a misdemeanor. New York State needs to change its laws such that a gun registered in any county is registered in all counties. The distinctive gun laws of New York City are a disservice to the citizens of New York City and are an anachronism. Going a step further would be greatly appreciated by many; guns in a person’s home or place of business shouldn’t need to be registered at all. NYC needs to honor the recent decisions of the United States Supreme Court, both literally and in spirit.

November 21, 2010

Firearms, Opinion

1 comment

In the days when the revolver was the typical handgun carried for personal protection, it was essential to keep the chamber beneath the hammer empty. The reason was simple. The hammer and firing pin was one piece. A round would easily fire if the hammer received an impact while the pin was resting on the primer. This could and often did occur when the revolver was not cocked, its normal status when carried. About 40 years ago manufacturers began to use transfer bars. The trigger, in addition to releasing the hammer, moved a bar up between the hammer and the firing pin. The hammer could only cause movement of the firing pin through the transfer bar, allowing discharge. When the hammer is down and the trigger is in its normal position, the hammer cannot contact the pin. The hammer simply rests on the frame.  The manufacturers , despite the inherent safety of these designs, continue to advise owners to never carry with a round chambered.

This advice continued even with the advent of  safe auto loaders, such as the Glock series of pistols. These are designed to fire only when the trigger is pulled, and the trigger has a safety catch  to prevent unintentional trigger movement.

I cannot imagine needing a pistol for self defense and taking time to chamber a round. What’s more is this is an opportune instance for a jam to occur. On the other hand, not following the manufacturer’s recommendations is a bit troubling, as well. Are manufacturers still advising carrying with an empty chamber to limit their liability from claims for damages from accidental discharge?

Your thoughts and comment on this issue are welcome.

On Monday, October 4, a New York Times article on the subject of state laws regarding carrying handguns in bars contained the following sentence:

The new measures in Tennessee and the three other states come after two landmark Supreme Court rulings that citizens have an individual right – not just in connection with a well-regulated militia – to keep a loaded handgun for home defense.

The two decisions, Heller and McDonald, recite the legal history of the Second Amendment language, which states: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, Shall not be infringed.” The author of the NY Times article, Malcolm Gay, seems to imply the right should only attach for members of an organized militia, which is untrue. The citizens of the United States are the militia. This was so when the Constitution was written, and the Court cited and acknowledged that history in their decisions. The Court’s correct interpretation of the intent of the Amendment helped build the foundation for both rulings.

The view of the opponents, that the Second Amendment gives the National Guard members the right to be armed, is strange. There is no document that preserves the rights of citizens, such as Magna Carta, the English Bill of Rights or Bill of Right, that seeks to ensure the right to bear arms for those in uniformed military service. It is unnecessary for the sovereign to guarantee that those enlisted, and who can be called into war in the defense of the sovereign, will be entitled to bear arms. No country has failed to arm their own soldiers for lack of a constitutional provision assuring the right.

July 3, 2010

Current Events, Firearms, Legal Views, Opinion

Comments Off on The New Problem with Second Amendment Law

The U.S. Supreme Court, through two recent decisions,  Heller v. Washington, D.C. and McDonald v. City of Chicago, articulated our fundamental right to keep and bear arms. Heller established the meaning of the Second Amendment under federal law, which includes regulation in federal enclave jurisdictions such as Washington, D.C. The decision also limits the authority of the federal government to prohibit the private ownership of firearms by all citizens, but Heller did not answer the question of whether the Second Amendment limited the regulatory power of the states. Until the recent decision in McDonald, the states, unless constrained by their own constitutions, were free to regulate guns out of existence. The Second Amendment now almost means what an elementary student would conclude when reading it for the first time without adult guidance; that is, pretty much what the drafters intended.

The newspapers correctly reported that McDonald applies the 2d Amendment to the states, but they did not go further. The Second Amendment now applies to the states through the due process clause of the Fourteenth Amendment. This is not new jurisprudence. Most of the rights articulated in the Bill of Rights have been applied to the states by the Court, decision by decision, in this way over the past 100 years.

The petitioner posited an alternate argument that the Court should apply the Second Amendment to the states through the privileges and immunities clause of the Fourteenth. This is a sensible argument, but the Court essentially refused to do this because of the long history of  incorporation jurisprudence using the due process clause. The only justice who supported incorporation under the privileges and immunities clause was Justice Thomas in a separate, concurring opinion. Thus the five justice majority included four basing their judgment on the due process clause and one using the privileges and immunities clause.  All the majority justices, and especially Justice Thomas, articulated in their decisions the difficult social and legal transition of Blacks moving from slavery to freedom.  This knowledge of history and disdain for what happened to the former slaves is inextricably tied to the majorities’ opinions, and is fundamental to the McDonald decision in fully understanding the intentions behind the drafting and adoption of the Fourteenth Amendment.

Until I read McDonald’s majority opinions, use of the due process clause  for incorporation never made sense to me. A simplistic explanation of due process is that it is the process due to someone. In my mind, as with many lawyers, rights are generally either substantive or procedural. The due process clause is an odd justification for the addition of substantive rights, and firearms rights definitely fall in that category. The legislative history of the Fourteenth Amendment provides additional strong support for the Thomas view. The clincher for the majority, in my opinion, were Court precedents. Using the privileges and immunities clause would overturn too many precedents while making no apparently meaningful change in the rights citizens enjoy.

The Fourteenth Amendment, one of the three Civil War Amendments, changed the relationship between the federal government and the states. Its legislative history shows that one of the ills it sought to remedy was the practice in the south following the war (forgive my general interpretation of history here) of the sheriff disarming the Blacks and then informing the hoodlums in town that the home was ready for them to terrorize through lynchings of men and boys, rape of women and girls, and arson to destroy the property. There is strong historical evidence that an important purpose of  the Fourteenth Amendment was the application of a right to bear arms that could not be limited by states and their arms of government, such as municipalities. The freed slaves would have the much needed right to defend themselves from local government and outlaws. Stopping the abuse of power by government, whether it be local or otherwise, is a key and essential right associated with an armed citizenry.

What are the problems with the Heller and McDonald decisions? The Second Amendment states:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

(Note that the amendment does not follow current punctuation rules of American English.) We now know that the militia was not the National Guard, it comprised all citizens. The Court got that part right, as well as defining the right to keep long guns and handguns for self defense in the home. These are fundamental rights. The elephants in the room are two. First, the Court’s finding that disallowing the ownership and possession of handguns in the home was a violation of a fundamental right of self-defense was not strongly grounded on empowering citizens in their right to protect themselves from the abuses of government. This is really a minor problem, because the case brought before them did not give the court jurisdiction on this issue anyway.  The second issue is significant. It is the dicta  in both decisions that “reasonable regulation” is allowed. The specific problem not handled well by this “reasonable regulation” stance is the impossibility of reconciling this language with the “shall not be infringed” portion of the Amendment.

The inconsistency between allowing reasonable regulation and the Constitution’s mandate that the right shall not be infringed creates many questions.  When the Bill of Rights was written and became law, not allowing the village idiot (a fair term of the day) or the criminal to have guns was clearly in local control. No one thought that the federal government would need to provide reasonable regulation; the states could do it. Now, through creative jurisprudence, the Court is recognizing that the federal government does have a regulatory role. This is sensible, but it is not what the Second Amendment states. The Court also made no distinction of the right to regulate firearms by the states compared to the federal government in either Heller or McDonald. Is everyone ignoring what is occurring? Several of the justices in the majority have been critical of liberal justices interpreting language in the constitution to suit their ideological needs. It seems the “strict constructionists” are equally guilty. As a gun owner and believer in the Second Amendment, I wish the Court had merely tossed the regulations in question that banned handguns, supported their decisions, and left the dicta on the kinds of regulations they would find reasonable to cases that required those analyses. The Court could have developed two sets of standards, one for the federal government and one for the states, on what constituted reasonable regulation. This approach would serve two purposes. It is the way the Court is supposed to exercise their jurisdiction, that is confining their decision to the case or controversy at hand, and it would induce the states and the federal government to review their regulations to assure they were in compliance with the Amendment, possibly avoiding more litigation by assuring that regulations were as minimally intrusive to our rights as feasible.

Despite the above legal problems, my prediction of what is coming is a case combining the right to petition our federal government, which implies a right to travel from any portion of the country to the seat of government, Washington D.C., with the right to keep and bear arms. If travel through the states is a fundamental right and the right to bear arms is a fundamental right, it seems to me neither the states nor the federal government ought to be able to restrict travel from, say, the State of Washington to Washington, D.C. while a law-abiding citizen bears a firearm for self defense. This would dismantle many federal and state laws if it were successful. But don’t hold your breath on this. It took us 150 years to sort out that the first clause of the Second Amendment did not defeat the right protected, and that the federal right could not be restricted by the states. We should not be too impatient with the work still needed.

June 6, 2010

Current Events, Firearms

Comments Off on Shootings in England

My sympathies are with the families and friends of those shot last week by the deranged taxi driver in England.

A reading of my earlier posts will reveal little support by me for the English approach to gun regulation and their prohibition rules. It seems as though Brits are only able to possess single shot rifles and shotguns. Pump action shotguns are illegal, as are all handguns. Any firearm in the possession of a citizen must be licensed.

We also heard the reports in Jamaica of the outlaws having guns available when the possession of them by the citizenry is clearly illegal.

The Brits are paying a huge price for their loss of what some of us believe is an inalienable right. They are not permitted to defend themselves, yet still suffer, at least rarely, from random and wanton firearms violence. This episode of violence endured for hours, while citizens scrambled for cover and unarmed police were called. Medics were tending victims while the perpetrator simply continued wreaking havoc.

Many of us think that we have violence problems that will always manifest, irrespective of the regulations on the tools used by the crackpots. After all, shooting innocent people and then yourself is not that different than using a suicide bomb, a tactic available irrespective of firearm regulations.

It is prudent for free societies to find the correct balance between private ownership of firearms for lawful purposes and reasonable regulation that respects the rights of the law abiding to be armed. It makes sense to recognize that people sometimes do evil things and there are always tools available to advance those interests. Solving the problem by outlawing tools of destruction is not a successful strategy.

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