Archive for ‘Guns’

06/21/2014

On rumors that Microsoft’s terms of service are anti-gun

by wfgodbold

Though the Firearm Blog and Lyle voiced their concerns about Microsoft being the latest in a line of companies to refuse their business to those engaged in lawful commerce in arms, I think their criticisms are, for the most part, unfounded.

The currently-in-force agreement incorporates the code of conduct that bans the sale of firearms and ammunition (the 2009 code of conduct referenced by TFB). However, MS has updated its terms of service (as of June 11, 2014), and the new terms–which go into effect on July 31, 2014 and replace the current terms–do not incorporate the reference to the 2009 code of conduct. If you wish to read the outgoing terms, they are listed halfway down the page under the heading “Archived Microsoft Services Agreement.”

The new terms also do not ban using the products to sell firearms or ammunition; instead of a long list of prohibited conduct, they have cut it back to general principles:

i. Don’t use the Services to do anything illegal.

ii. Don’t engage in any activity that exploits, harms, or threatens to harm children.

iii. Don’t send spam or use your account to help others send spam. Spam is unsolicited bulk email, postings or instant messages.

iv. Don’t publicly display inappropriate images (e.g. nudity, bestiality, pornography).

v. Don’t engage in activity that is false or misleading (e.g. attempts to ask for money under false pretenses, impersonating someone else).

vi. Don’t engage in activity that is harmful to the Services or others (e.g. viruses, stalking, hate speech, advocating violence against others).

vii. Don’t infringe upon the rights of others (e.g. unauthorized sharing of copyrighted music, resale or other distribution of Bing maps, photographs and other Content).

viii. Don’t engage in activity that violates the privacy of others.”

Those are all of the restrictions in section 3.6: “What type of Content or actions aren’t permitted?

So while it is technically true that the Microsoft Services Agreement–as it stands right now–prohibits using its products in conjunction with the sale of arms or ammunition, at the end of July it will not.

Disclaimer: This is not legal advice. Rely on it at your own risk. I wrote this mainly because I needed a break from studying for the bar exam.

08/28/2013

About this pro-gun “Harvard” “study” that is making the internet rounds today

by wfgodbold

There are a few things that need to be said:

1. It isn’t new; it’s from 2007.

2. It was published in the Harvard Journal of Law & Public Policy, which is the official journal of the Federalist Society (and so, despite the Harvard name, has a more right-libertarian bent than one might expect; in fact, the top of the Journal’s homepage bears the legend “The nation’s leading forum for conservative and libertarian legal scholarship.”).

3. The authors do not appear to be affiliated with Harvard. This is due to the nature of law review publications (which the Harvard J.L. & Pub. Pol’y most assuredly is). Law professors and attorneys write articles and then submit them to reviews for consideration for publication. The staff of the review will check the articles and their sources, making sure that cited authority actually says what the author claims it says.*

Now, I haven’t read the article itself or looked at the sources or methodology. I am in favor of its conclusion (as should be obvious from this blog). Its truth or falsity should be determined irrespective of its source.

Breitbart.com‘s calling it a Harvard study is bending the truth nearly to the breaking point, and Hot Air‘s assertion that because this article is from HARVARD!!11!1 it settles everything is flat out wrong.

I was originally going to submit this as a comment over at Alphecca, but decided instead to get in my one post for August (I have no idea why this has become my new schedule, but I will try to post more frequently).

*If you remember, gentle reader, I am currently a member of the law review at my law school. Reviews are predominantly student-run, and we spend most of our time running down sources and editing submitted pieces.

07/11/2013

Schrödinger’s Open Carry in Arkansas

by wfgodbold

Before I get into the meat of Act 746 of Arkansas’s 89th General Assembly (on which both Clayton Cramer and Sebastian and Bitter have recently written), let me congratulate Illinois on its actual passage–over the governor’s vet0–of a shall-issue concealed carry licensing scheme. Welcome to the club!

Now, here in Arkansas, much hullabaloo has been made over Act 746, which went into effect on July 1st. That act changed the language in Arkansas’s law regarding the offense of carrying a weapon (Ark. Code Ann. § 5-73-120), and in the law governing possession of handguns on school property (Ark. Code Ann. § 5-73-119).

The main issue is with § 5-73-120, which previously read:

(a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person.

(b) As used in this section:

(1) “Club” means . . . ;

(2) “Handgun” means . . . ; and

(3)(A) “Knife” means . . . .

(B) “Knife” includes . . . .

(c) It is a defense to a prosecution under this section that at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . .

Note that though this section provided the “journey” defense, subsection (b) did not actually define what qualified as a journey.

As of July 1st, the statute, as amended by Act 746, now reads:

(a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

. . .

(b) As used in this section:

. . .

(3) “Journey” means travel beyond the county in which a person lives; and

. . .

(c) It is permissible to carry a handgun under this section that if at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . . [emphasis added]

So, the amended statute now defines journey, changes defenses to carrying a weapon to when it is permissible to carry a weapon, and adds what appears to be a mens rea element to the offense itself–the person’s purpose must be to unlawfully employ the handgun.

The situation is further muddled by AG Dustin McDaniel’s official opinion on the new journey provision of § 5-73-120, delivered in response to a state senator’s request for clarification of the meaning of the journey provision. McDaniel is very careful in his opinion to limit it to the meaning of this provision–in footnote 7, he states:

The act defines as one element of a possession offense under subsection 5-73-120(a) having “a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” Acts 2013, No. 746, § 2 (new language underlined). Although one might debate the significance, if any, of this change in terminology, it is clearly immaterial to your question.

Because the state senator only asked about the journey provision, McDaniel dodged the more material question of whether the changes to § 5-73-120(a) by themselves decriminalize open carry in Arkansas.

I will remind you, gentle reader, that I am a law student–not a lawyer–and nothing in this post is offered as legal advice.

That disclaimer out of the way, I will say that I don’t plan on being the test case.

04/19/2013

Remember, gentle reader, that if you’re going to lose, lose big. And then be a total dick about it.

by wfgodbold

I got the bulk of my gloating in by quoting Conan the Barbarian, but I couldn’t let Bloomberg’s and Giffords’s post-gun-control-failure statements just sit there.

Bloomberg, the micro-managing tyrant of NYC, said:

Today’s vote is a damning indictment of the stranglehold that special interests have on Washington. . . . More than 40 U.S. senators would rather turn their backs on the 90 percent of Americans who support comprehensive background checks than buck the increasingly extremist wing of the gun lobby. [emphasis added]

Gabrielle Giffords, who was tragically shot in the head by a lunatic and then granted supreme moral authority by the hard-core anti-gun crowd, said much the same thing:

I watch TV and read the papers like everyone else. We know what we’re going to hear: vague platitudes like “tough vote” and “complicated issue.” I was elected six times to represent southern Arizona, in the State Legislature and then in Congress. I know what a complicated issue is; I know what it feels like to take a tough vote. This was neither. These senators made their decision based on political fear and on cold calculations about the money of special interests like the National Rifle Association, which in the last election cycle spent around $25 million on contributions, lobbying and outside spending. [emphasis added]*

President Obama, of course, was not one to leave the special-interest-bashing to others, as the New York Times noted:

Standing in the Rose Garden next to former Representative Gabrielle Giffords and other victims of gun violence, Mr. Obama flashed anger as he said that the gun rights lobby had “willfully lied” about the legislation, and that Republicans and Democrats had “caved to the pressure.”

Bloomberg, of course, founded and bankrolls Mayors Against Illegal Guns, a notorious anti-gun organization filled with criminal mayors. Giffords similarly started her own super-PAC to push for strict gun control.

I’m not saying that Bloomberg and Giffords aren’t free to spend their money (or in the case of Giffords, donor money) to lobby for policy changes they support. Free speech and the right to petition legislators and the government for the redress of grievances are at the heart of our political system.

That said, it’s disingenuous at best, and damnably hypocritical at worst, to bemoan the grip that other special interests have on Washington merely because they defeated your special interests.

Gun control isn’t about guns. It’s about control. Control of you, gentle reader. I’ll leave you with an excerpt from Rudyard Kipling’s The Gods of the Copybook Headings:

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”

*For a complete list of the various fallacies Giffords employs in her blatant attempt at emotional blackmail, check out James Taranto’s response at the Wall Street Journal.

04/17/2013

What is best in life?

by wfgodbold

To crush your enemies.

See them driven before you.

And hear the lamentations of the women.

Thanks to all who called their congressmen to read them the riot act. Of course, just because gun control was defeated today doesn’t mean that it’s gone forever. The price of freedom is eternal vigilance, etc.

04/12/2013

Quote of the Indeterminate Time Interval – Bubblehead Les

by wfgodbold

Over at Shall Not Be Questioned on the Toomey-Manchin deal:

This bill is like trying to plug the holes in Swiss Cheese by cutting out plugs from the same slice and inserting them into the holes that are already there.

I’ve only read excerpts of the bill so far, but I’m not impressed. I’ll try to read it this weekend and post my thoughts in between preparing for my trial advocacy final and grading legal research assignments for class I’m the TA for.

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03/30/2013

A month’s worth of movie reviews

by wfgodbold

In reverse chronological order:

GI Joe: Retaliation was pretty good, if a bit light on plot (but hey, it’s GI Joe; just be glad the last half of the movie doesn’t teach you a moral lesson), and a bit ham-fisted with how it deals with characters from the first movie. Overall, though, I’d say it was better than the first movie, and should make enough money for Hasbro to keep the series going (whether that’s good or bad I leave up to you, gentle reader).

Olympus Has Fallen is a rah-rah kill ‘em all kind of movie, and Gerard Butler takes a turn as a Secret Service agent who has to save the president from an army of terrorists. He does so, of course, with much violence and more headshots than seems probable (look, if you’re fighting an army of mooks, it makes zero sense to shoot them all with a handgun when you’ve got a perfectly serviceable carbine SLUNG ACROSS YOUR BACK). *ahem* Anyway, aside from one scene (where I think the director was trying to hard to give us an American version of Fabrizio Quattrocchi‘s “I will show you how an Italian dies!”), it’s a good action movie. Even if the president kept making terrible decisions (I suppose they needed realism there to make up for the headshots).

Jack the Giant Slayer is an entertaining . . .

No. Just no. I can’t do this. It’s terrible. Not even Ian McShane, Ewan MacGregor, and Bill Nighy are enough to salvage this monstrosity. This does not fill me with hope for Bryan Singer’s return to the helm of the X-Men franchise.

A Good Day to Die Hard, on the other hand, is everything we’ve come to expect from a Die Hard movie. Gunfights, explosions, duplicity, John McClane complaining about absolutely everything, and general mayhem. Would definitely see again.

I had meant to write these up individually, but I kept finding some reason to procrastinate. I shall endeavor to do better, gentle reader. Until next time, enjoy the trailers for RED 2 and The Wolverine:

03/21/2013

Intermediate scrutiny is the new rational basis

by wfgodbold

At least in the Fourth Circuit.

The Fourth Circuit Court of Appeals’ decision reversed the district court’s decision in Woollard v. Sheridan (which had invalidated the Maryland concealed carry statute’s requirement that an applicant show good cause for issuance of a concealed carry license).

The court quoted legislative “findings” supporting the law as written:

(1) the number of violent crimes committed in the State has increased alarmingly in recent years;

(2) a high percentage of violent crimes committed in the State involves the use of handguns;

(3) the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals;

(4) current law has not been effective in curbing the more frequent use of handguns in committing crime; and

(5) additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

The court even notes that these findings (adopted in 2002), have not been substantially changed since the Maryland legislature first adopted them in 1972.

Somehow, despite the passage of 30 years from the legislature’s initial adoption to its re-adoption of these findings, the situation in Maryland has not changed (after all, if it had worked, and crime had gone down in response to any laws based on these findings, surely the present findings would differ by at least crediting the current harsh laws for the drop in crime). This is in fact strikingly similar to the Supreme Court’s current case on the Voting Rights Act, in which Congress had adopted the same “findings” today as it did at the VRA’s inception–in 1965.

The Fourth Circuit went on to list several other “findings” (I won’t reproduce them here; if you click through to the Volokh Conspiracy and then to the opinion itself, you can read them on pp. 26-28). This reads like a litany of standard gun control fears–essentially that liberalized carry will take us back to the wild west. It hasn’t (for example, despite similar claims by opponents of Virginia’s bar and restaurant carry bill, crime didn’t increase–it dropped).

Maryland essentially argued that they should be able to deny carry licenses to the vast majority of applicants because of public safety, and the Fourth Circuit went along with it (citing heavily to the Second Circuit’s opinion in Kachalsky, but doing its best to minimize the Seventh Circuit’s opinion in Moore).

Professor Volokh appears to take a dim view of the court’s deference to the legislature’s findings (especially coupled with this standard of review) and notes that “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

I agree.

I would go further, though. The various circuits, in KachalskyPeterson, and now in Woollard are focusing too much on Heller and McDonald‘s language regarding the “core” Second Amendment right. The right of armed self-defense may be strongest in the home, but as the Seventh Circuit noted in Moore, that does not mean that it is nonexistent elsewhere. 

I only have one other thing to say about this case–I’m very glad it came out today and not last Thursday, or I would have had to stay up all night reworking certain parts of my law review note so I could turn it in on Friday.

03/03/2013

Remember, gentle reader, that under federal law, “firearm” has a very specific definition

by wfgodbold

A firearm is:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device.

Under federal law, all such “firearms” must be registered. From the definition, regular handguns, rifles, and shotguns are not included. Only short-barreled rifles & shotguns, machine guns, silencers, destructive devices, and AOWs are “firearms.” Possession of unregistered firearms is a felony punishable by up to ten years in prison and/or a fine of up to $10,000.

So when you read, gentle reader, that President Obama has pardoned someone for “possession of an unregistered firearm,” it means that the person pardoned had either a short-barreled rifle/shotgun, a machine gun, a silencer, a destructive device, or an AOW that was not registered with the ATF.

Now, it could be that Obama now thinks that heavily restricting the possession of firearms is a bad idea. If so, I agree, and I look forward to any proposal for repealing the NFA the president brings forward. Suppressors are great safety devices, and short barrels make rifles far less unwieldy. I shouldn’t have to pay a $200 tax stamp to the government to possess them, and I certainly shouldn’t be prevented from lending them to friends or family (I’m not even going to address the ridiculous necessity of gun trusts the NFA has foisted on us).

Considering Obama’s continued push for standard capacity magazine bans and a reinstatement of the ban on so-called assault weapons, I doubt that’s the case.

01/21/2013

On arbitrary magazine capacity limits

by wfgodbold

Robert VerBruggen over at NRO highlights a major problem with New York’s new seven-round magazine limit: chiefly that most modern handguns don’t have seven-round magazines.

At all.

One commenter asked whether “high” capacity magazines gave an advantage in a gunfight, but not against unarmed targets, and I responded with this:

Increased magazine capacity confers an advantage when one is limited by magazine quantity. If one wears gear making it feasible to carry a large number of magazines (as the Aurora shooter did), then the capacity of those magazines does not confer so great an advantage.

In other words, if you’re ammunition-limited, magazine capacity doesn’t matter. If you’re magazine-limited, magazine capacity does matter. Mass shooters have generally been the former, and the law abiding the latter.

I don’t carry because I want to shoot someone, just like I don’t have a first aid kit in my car because I want to practice emergency medicine.

I carry (when I can) because should I need immediate protection, the government has no obligation to provide it.

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