Posts tagged ‘CCW’

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.

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.

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.

12/13/2012

I’m of mixed feelings about the 7th Cir.’s holding in Moore v. Madigan

by wfgodbold

One the one hand, anti-gun wailing and gnashing of teeth is like music to my ears (the decision is here). Though gun control’s not quite dead, it’s definitely on life support.

On the other hand, this has thrown a wrench into a certain project I’ve left undescribed (see fn 1). Between this case, the 2d Cir.’s holding in Kachalsky, and whatever the 9th Cir. holds in Richards v. Prieto (assuming it’s decided next semester-ish), I’m going to have to rework substantial sections.

On the gripping hand, my project not only turned out to be timely, but by the time it’s done, it may even be on a circuit split!

And with that said, those astute readers of mine will likely have deduced the general subject of my law review article.

Now, back to studying. One more exam to go, and then this semester will be officially over.

08/07/2012

Why should I do any soul-searching?

by wfgodbold

I didn’t kill anyone.

I didn’t suggest that someone else kill someone.

Yes, the shooting at the Sikh temple in Wisconsin was a tragedy. But it was no less a tragedy than the recent mass stabbing in China (which, you will notice, was more deadly: 8 killed and 5 wounded in China, as opposed to 6 killed and 4 wounded in Wisconsin).

President Obama said that we must “do some soul searching to examine additional ways that we can reduce violence.”

I will commend him for not actually saying “gun violence;”* being shot kills you just as dead as being stabbed, bludgeoned, or poisoned. However, I can’t actually reduce violence myself; I’m not violent.

“But,” you say, “don’t you carry a weapon?”

Yes, but I don’t carry it to be violent.

I carry to prevent violence.

The police aren’t there to protect me. They’re not there to protect you.

The police are there to clean up after the fact, investigate, and deter criminal behavior.

Not to protect anyone else.

Since I can’t afford bodyguards (like Michael Bloomberg or Richard Daley), I choose to take responsibility for my own safety.

*Unlike the nanny of the decade, Michael Bloomberg. Given his track record with other amendments, it’s not surprising he still hates the second. DC v. Heller is still good law; handguns and semi-auto weapons are protected because they’re in common use.**

**This standard seems to be begging the question. Automatic weapons aren’t in common use because they’ve been heavily regulated since the 1934 NFA, and de facto banned since 1986***. According to the court’s logic in Heller, this ban is fine because automatic weapons aren’t in common use, but they’re not in common use because they’re banned.

***They’re not actually banned de jure; if you pay for the tax stamp, you can buy a machine gun that was manufactured before 1986; however, they’re not making any more of them, so qualifying automatic weapons can cost upwards of $10,000.

03/04/2012

The Oregon Higher Education Board is altering the deal…

by wfgodbold

Pray they don’t alter it any further.

The board voted to prohibit “anyone who has signed a contract with the university from carrying a gun on campus,” after the previous ban was overturned for usurping the legislature’s authority.

Now, we haven’t gotten to amending contracts in class yet (later this semester!), but I don’t see how the board can unilaterally declare that everyone who has signed a contract with the university (students, professors, staff, vendors, sports ticket buyers, etc.) is prohibited from carrying on campus. That seems to be a pretty substantial term, and without anything in the contract indicating such, I don’t think it would be binding.

It also seems to be a pretty blatant end run around last fall’s ruling. This de facto ban usurp’s the Oregon legislature’s authority just as much as the previous ban did, but in a more roundabout way.

Board Spokeswoman Diane Saunders had this to say:

We wanted to get as close back to where we were with the old rule, which has been in force since 1978. We’ve been lucky in Oregon. We have not had the kind of (gun attack) that Virginia Tech has seen. We believe it is because we have been able to regulate firearms on campus.

She comes right out and says that they’re trying to ignore the court’s ruling. She also draws a false comparison between Oregon and Virginia Tech; at the time of the VA Tech massacre, guns were just as prohibited on campus there as the Oregon Board is trying to keep them in that state. In fact, the year before the massacre, legislators killed a bill that would have allowed lawful concealed carry on VA Tech’s campus, and a spokesman for VA Tech said, after that bill’s defeat:

I’m sure the university community is appreciative of the General Assembly’s actions because this will help parents, students, faculty and visitors feel safe on our campus.

That was in January of 2006, 15 months before VA Tech learned that “feeling safe” doesn’t mean a whole hell of a lot.

The Oregon Higher Education Board is going to drag its heels as much as Chicago and DC have, but eventually they’re going to end up on the wrong side of an expensive judgement, and instead of being held personally responsible for their continued violation of civil rights, they’ll just pass the cost on to the taxpayers.

02/14/2012

It may have taken me longer than most to get around to it…

by wfgodbold

But I did manage to doff my hat to Starbucks today (and leave a Jefferson in the tip jar).

When you’re fighting against people on the wrong side of history, every little bit helps!

It doesn’t hurt that they’re completely divorced from reality, either.

On the other hand, I paid cash for my coffee.

Now the fuzz has another reason to put me on a list.

01/31/2012

Thank God I don’t live in DC

by wfgodbold

Because Emily Miller spent more on training, permitting, and registration ($465) before the government allowed her to buy a gun than I did just to buy my first gun (no registration, permitting, training, fingerprinting, or anything else required). My Bersa Thunder 380 CC was (IIRC) right at $300.

Now, I did have to spend ~$125 on a CCW training course and fingerprinting, and another $145 for the FBI background check and state CCW application processing, but that was to be licensed to carry, not merely to own the handgun. And even that, I think, is far too excessive. I shudder to think what DC’s carry fees would be (if they allowed any form of carry at all, which they do not).

High registration or permitting costs are one of the easiest ways for politicians to keep guns away from those they don’t believe should have them; in places like Washington, DC and New York City, that’s pretty much the entire populace.

01/25/2012

Quote of the Indeterminate Time Interval – County Councilman Michael Brown

by wfgodbold

Michael Brown is sick of the local sheriff encouraging qualifying citizens to protect themselves.

This isn’t really a quote, but the paraphrase of Brown’s statements from this article:

Despite what the sheriff may say Brown believes encouraging people to get a CWP isn’t the answer.

County Councilman Brown says law enforcement get more hours of training when it comes to weapons and they should be the ones protecting citizens. Sheriff Wright says he hasn’t heard from brown’s constituents who are upset over his comments and says he has an open door policy.

This is especially bad timing, given that a patron of a local Waffle House had to defend himself from what must have been a pair of misunderstood upstanding citizens.

Even if I were to concede the councilman’s point that the police are better trained (given the OCD of the gunblogging community when it comes to classes and training, I find that a bit hard to believe), the police have no duty to protect anyone.

Not you, not me, and certainly not the poor bastard who had to defend himself in a Waffle House in Spartanburg, SC.

What are we supposed to do, Councilman Brown?

Wait the rest of our lives for the police to show up?

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12/28/2011

Gell-Mann amnesia strikes again!

by wfgodbold

In his 2002 speech* “Why Speculate?” Michael Crichton brings up an interesting effect:

Briefly stated, the Gell-Mann Amnesia effect is as follows. You open the newspaper to an article on some subject you know well. In Murray’s case, physics. In mine, show business. You read the article and see the journalist has absolutely no understanding of either the facts or the issues. Often, the article is so wrong it actually presents the story backward—reversing cause and effect. I call these the “wet streets cause rain” stories. Paper’s full of them.
In any case, you read with exasperation or amusement the multiple errors in a story, and then turn the page to national or international affairs, and read as if the rest of the newspaper was somehow more accurate about Palestine than the baloney you just read. You turn the page, and forget what you know.

The more widespread usage of the internet becomes, the more this effect’s prevalence becomes striking; I bring it up today because of the NYT’s attempt to paint North Carolina CCW holders as criminals.

Bob Owens comes to the same conclusions as Crichton.

I can attest to the same thing (and the more I learn about varied subjects, the more obvious the lack of competence becomes). Stories about guns are rarely correct. Stories about chemical engineering are likewise badly researched (journalism majors are bad at engineering? Go figure!). Stories about Japan are sometimes correct, but more often than not have a few factual errors. Reporting on any kind of video game is laughable. And I’m sure the more I learn about the law, the more ridiculous reporting on the law will become.

If you’re not interested in something in the first place, you’re not going to bother to make sure you get everything right (especially if you’re trying to push some kind of agenda).

The more the old media continues to push this kind of easily debunked nonsense, the more they make themselves irrelevant and hasten their inevitable demise.

*The link goes to the Wayback Machine because Crichton’s website no longer makes his speeches available. If you know what you’re looking for, you can still find classics like “Aliens Cause Global Warming,” though.

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