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The “Perfecting” of History
Over the last few days, the single most important story that could dramatically effect our lives: The escalation on the Korean Peninsula has been supplanted by a insane act of violence in Virginia. Once again, the weapon of choice was not a gun or a knife… it was an automobile.
It was also a desperate reminder that politics has a failure point… what then happens… the result is often bloodshed.
Our system of government is elegant. It was developed to withstand the whims and vagaries of successive generations and stylistic attitudes. It does this through an absolute prohibition of allowing the government the ability to screw around with the minority.
This is important. Minority rights are the bulwark against tyranny. It also allows for both constructive dialogue as well as a shared “American Experience”. Without both, our Republic is lost.
The Constitution was written with goals in mind. Chief among them, as articulated in the Preamble: “To Secure the blessing of Liberty, to ourselves and our Posterity…”
Liberty is freedom from Tyranny, and that has traditionally been seen as tyranny by the majority against the minority. This is not always the case. There have been far too many instances of the reverse being true as well: Tyranny of the minority, against the majority.
The genius of our Founding Fathers is the realization that the government was a tool of force. A blunt, egregious club that if used properly was only effective in protecting the boundaries of human conduct. People would need to rely upon their own devices for social interaction and self development both personally and economically. The government was to be limited to securing the forum for an individual to act in a manner consistent with the development of their own personal happiness. Counter to this system, would be an individual using the coercive power of government to achieve a personal end.
Yet, here we are.
Individuals have become “corporatized”. There is no such thing as the “individual” . There is only the membership in a group or tribe that creates social value…. and for the first time in our history, the inclusiveness of that group or tribe has become selective. No longer do we yearn to have our thoughts grow, and have influence on others. Now, we seek exclusivity through the moniker of “Minority”.
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If we are a member of a minority group, we are defined as “aggrieved”… Yet the protector of our group has always been the Constitution itself. If the majority refuses to read your pamphlet, they cannot be coerced into doing so by the government. The market place of ideas will regulate which speech is sought, and which is considered worthless. The individual must tailor his message to achieve the widest receptive audience. If he is not successful, then his message… at least, at that time in history… will fall upon deaf ears. The majority cannot however use the power of the government to silence him. They can only use their freedom to ignore him.
The majority in any one particular City State, may not like the bearing of arms, but to the minority that finds comfort in the safety they provide, they should be secure in the knowledge that their rights are protected by the Constitution.
Yet, when the minority finds offense in the very nature of the Constitution… Well, now we have a problem.
Those that spout off about racial superiority are by definition intellectually inferior. Yet, should we say the same about those that seek cultural separation? What exactly is the culture that we are talking about in the first place? I participate in a variety of cultures. I am a lawyer, and as such, I participate in a culture that is based around other lawyers and an interest in eschewing emotion for logic. I am a historian, I surround myself with others that share a similar interest in using history as a measure of the human experience. I am a firearms enthusiast, a hunter, a Libertarian. All of these “cultures”, I am a part of, and some are mutually exclusive.
Because of the First Amendment, I am free to associate with those that hold a similar ideal and position within my culture. I am also desperately interested in attracting new members to my culture. My culture cannot be exclusive or they will ultimately die.
There is a common thread that connects all of these cultural tapestries… A fundamental understanding that I AM AN AMERICAN.
That means something.
That means… that I fight against tyranny. That I fight against the forces that would subjugate the Constitution to their own benefit, and that, I fight for the fundamental rights of my fellow Americans.
When we took our oaths as military officers, we swore to protect the Constitution against all enemies both foreign and domestic…. the “domestic” clause is there for a reason.
Abraham Lincoln in his Lyceum address said “ All the armies of Europe, Asia, and Africa combined, with all the treasures of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force to take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years. If destruction be our lot, we ourselves must be it’s author… and it’s finisher.”
THIRD TIME IS THE CHARM
This week, I wanted to have a conversation about freedom. Specifically, I wanted to talk about the phrase at the beginning of the Preamble of the Constitution that stipulates that the Bill of Rights were codified to “….secure the blessings of Liberty”
That will have to wait.
Sometimes, tyranny will intrude into even the most polite of conversations.
This happened last week, when the California Department of Justice finally found their ideal bureaucrat in the Office of Administrative Regulations.
Those of you that have “modern muskets”… California has identified you in the most despicable of terms. More to the point, they have decided what cosmetic features on your rifles are acceptable and what are not. Lastly, they have violated the concept of separation of powers and picked up where the legislature was not prepared to go.
So… to bring everyone up to speed:
Last year, the Legislature voted on a series of bills regarding firearms ownership. One of those bills was SB 880. Essentially, it said that a semi automatic rifle that had a bullet button affixed as a magazine release…. a device that was specifically created to allow for compliance under California law… was no longer effective. Up to this point, it was deemed that a semi automatic firearm, with one or more “evil features” and a traditional magazine release was an “assault rifle”. If the magazine was fixed in place, (a status that the bullet button allowed for) then it was not an “assault rifle”. SB 880 changed that. Now, if you have a rifle with a bullet button… then by definition, it is not exempt, and thus must be characterized as an assault rifle.
But the legislature did allow for a caveat. IF the weapon was owned before January 1 of 2018, then it could be registered as an “assault weapon”. Something that was prohibited for civilians to do up to this point.
DOJ decided that this exemption did not go far enough.
By definition, if following the law as developed by the legislature, the owner were to register the weapon as an “assault weapon”, they should be able to remove the bullet button and install a traditional magazine release. Since there is only one definition of “assault weapon”, and there are no sub categories, the registration process should have been remarkably simple.
DOJ thought otherwise. They crafted a new definition of “assault weapon”. Essentially, in their eyes there are two: Traditional “assault weapons” with regular magazine releases, and “Bullet Button Assault Weapons”… rifles that must live out their days with the bullet button fixed to the side.
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They put forth their regulations and the methods to register the rifles. They did this in a manner that prohibited individuals from seeing the regs. The NRA and the CRPA squared up against DOJ and they backed down, voluntarily pulling their regulations in May.
Then, they tried again.
This time, they put forth substantially the same regulations they had put forth the first time, and they were rejected by the Office of Administrative Law.
So, they did what any good tyrant would do… they simply refiled.
This time, a new bureaucrat, (or perhaps the same one… but having had a counseling session with their masters)… approved the regulations.
So… as of this writing, you are free to register your “bullet button assault rifle” with the State of California.
I urge you not to.
First off… the registration process is unnecessarily intrusive and frankly potentially violates your Fifth Amendment rights.
While there is no law that states that you must “build out a rifle”, the registration process demands that you do. There are many people that have lowers that they purchased prior to the end of the year. No where in any legislation does it state that those lowers must be built into full rifles for registration. Yet, the DOJ demands that you do just that. They even want you to take photographs of the rifle and send them to Sacramento electronically.
Here is the thing… if you were to take your stripped lower, and assemble it in preparation for registration, and you affix a bullet button on it, you are committing a felony.
Yes… you need to commit a felony first, in order to become legally compliant.
Moreover, in the registration process they demand that you state date of acquisition of your firearm with a high degree of specificity. Many of you (and me as well) don’t have copies of our original DROS paper work. If we “guesstimate” when we picked it up…(information that DOJ has in their possession and can check)… and you get the date wrong: You’ve committed a felony.
Many of you know that as we moved forward towards registration last year, I was of the position that we should all register our guns and replace the magazine releases with traditional buttons. I wanted the State to scratch their heads, and wonder how they created a scheme where suddenly hundreds of thousands of rifles now had regular magazine releases on it.
Well… the State bypassed the rule of law, and created this bazaar registration mechanism that prevents that from happening.
So… now, I urge you all NOT to register your guns.
Go featureless… at least for the time being. Perhaps this really is the best course of action to make a political statement.
The tyrants wanted to force you to give up your modern musket and register it as an “assault rifle”. They wanted you to be forced into modifying your gun and make it less efficient, and less safe.
Show them how you feel by bypassing their unbelievably expensive registration system, and winding up with a regular magazine release to boot. Remember… if it is featureless, it can have a regular magazine release.
The weapon might look ridiculous, but then again sometimes we must make sacrifices in order to fight the forces of oppression.
WRENN v. DISTRICT OF COLUMBIA
Whenever freedom nudges upward from the dark ooze of tyranny, we must pause and acknowledge. Sometimes, the burst of light that emanates from the darkest region comes upon us like a fiery blaze. Illumination… inspired by Divine Providence that completely burns away the chains and cables of tyranny in one glorious inferno.
Other times there are glimmers of of hope. Brief instances of enlightenment that remind us that freedom is the natural yearning of all suffering under the yoke of oppression. Often times, those momentary flashes happen and are quickly extinguished by the prevailing infrastructure of institutionalized tyranny.
Though, they are short lived... they remind us that patriots lurk in the background. Minutemen who always stand ready to protect our experiment in limited government and freedom. Even when others have become ambivalent.
If enough of these “freedom sparks” occur... there stands the real chance of a larger ignition, so we monitor and nurture these independent events.
Such as what occurred last Tuesday in the United Sates Court of Appeals for the District of Columbia.
The case is Wrenn v. District of Columbia… and it turns on a singular question: Can a government acknowledge that an individual enjoys an enumerated right… a right that pre-exists the formation of the government in question… but create a scheme where the individual must beg for permission to exercise that right, and for the most part have the government deny the request?
Judge Griffith in his decision answered the question emphatically: No.
The District of Columbia has played an important role in our understanding of the Second Amendment. It was the District's out right ban on the possession of firearms… even in the home… that was the core component of the famous Heller v. District of Columbia. This case provided the framework for the late Justice Antonin Scalia (may God rest his soul), to articulate the basic understanding of the Second Amendment that we all already knew: That the Second Amendment was not a “collectivist right” applying only to members of the National Guard… an argument that merited virtual know empirical academic scholarship… yet one that the "antis" had promulgated for years. Instead, he acknowledged that the Second was an Individual Right. More importantly, it was an Individual “Fundamental” Right… meaning that via the Fourteenth Amendment, the right to Keep and Bear Arms was not an exclusive limitation of federal intrusions… it had now been incorporated to each of the State Constitutions preventing State actions that would bar the ability of the people to exercise their Second Amendment Rights.
Tyrants… both local and national, being what they are cannot accept the idea of an empowered citizenry... so attempts were made both in the Judiciary, as well as in local governments to create a Byzantine bureaucratic maze that must be navigated for an individual to bear arms... that out of sheer desperation the individual chooses to give up. Courts also crafted “intermediate tests” to determine wether regulatory statues violated the Second Amendment. The “intermediate tests” are unheard of when it comes to the testing of an enumerated right… the appropriate level of review should be what is referred to as “strict scrutiny”… still, flouting the express language of the higher court they did so anyway.
The District of Columbia adopted a “Good Reason” standard that one must achieve before the Masters of City Government were to acquiesce to a mere citizen be allowed to leave their home with a concealed firearm.
“State your reasons succinctly… and if it pleases the Crown then perhaps, we will agree to it.”
Since the bearing of Arms by a citizen never “pleases the Crown”… it was highly doubtful that a permit would ever be issued. Empirical evidence of approvals vs. denials proved this out.
Judge Griffith stated enough was enough.
The Constitution had bee abrogated too long by petty tyrants. Hence forth, the “good reason” requirement was abolished.
The District of Columbia has a few days to appeal for an En Banc review. (Those of you how followed Peruta know how this can go). There is of course always the potential of an appeal before the Supremes. Though there is no guarantee that they would even consider the case.
Finally,… this case, bears little immediate concern to our own local and State tyrants. They are not bound by the decision of the Court of Appeals for the District of Columbia.
Yet, it should give them pause.
While this little flicker of freedom may in fact quickly be extinguished, it could also merge together with other sparks, and quickly spread to a gloriously brilliant inferno.
I’m tired of flamingos.
I am annoyed at bureaucrats that wear cheap suits and smell of stale alcohol.
I do like foreign cab drivers, and books about philosophy… but plastic suburban middle managers cause all sorts of primal urges to boil to my surface.
Women that wear too much makeup on their face concern me.
Men that wear too much makeup on their face concern me more.
Skinny jeans are weird.
There is a binary outcome of any contest. Either you win or you loose. Unless you are in the ultimate contest where your life is on the line this very instant… you ALWAYS get to play again.
Winning and loosing means very little to me. Because the winner by definition has a whole bunch of losses under his belt.
Shaking it off and doing it again… that is far more impressive.
That is also why we do not tolerate defeatism.
Failure? Sure… we actually embrace failure. When we fail, when we analyze what caused us to “underwin” that evolution. When we figure out how “not to make a lightbulb”…. we grow.
The Hegalian concept of progress goes like this: A thesis takes us inevitably to an antithesis which then leads to synthesis.
So… let’s look at it from the stand point of the gunfighter:
The would be gunfighter approaches the line. His “thesis” is that: he is a badass capable of mystical ballistic arts, a true Master at Skill at Arms. After firing a string of shots, fumbling a tac load and leaving a partially full magazine on the ground, he realizes that out of the four shots he fired only three hit the target. He has just been slammed upside the head with an “antithesis”…
He is NOT the Samurai he thought he was.
From this realization comes a “synthesis”… an understanding that he must proceed down the road towards “Shibumi” a sate of effortless perfection… a destination that he has not yet reached… and one that can only be reached with countless dedication to practice.
He must train constantly, train consistently, and train with purpose.
Giving up and walking away is the only option that is UNACCEPTABLE!
In fact, the only way that our student of the gun can gain the knowledge that he simply must attain is through a deep understanding of failure.
During our last CCW class, a student went into “defeatist mode”. After shrugging his shoulders and angrily re-holstering his gun… our instructor Ivan “The Massive”, began a high decibel counseling session.
“WHAT ARE YOU DOING?!?!”
“YOU ARE NOT QUITTING ON ME! I HAVE NOT… NOR WILL I EVER… GIVE YOU PERMISSION TO QUIT!”
“TRAIN TO WIN! PUSH PUSH PUSH! NEVER SURRENDER! NEVER ACCEPT DEFEAT!”
Those of you who have met Ivan “The Massive” who is an active duty member of the armed forces and part of the Special Forces community, will understand that having him single you out for counseling can be a somewhat intimidating experience.
Later, back at the tables while reloading… Ivan in a more even tone explained to the student the need for maintaining a “training attitude”.
“Look… even in my line of work… success is not achieved by doing something once. It is the accumulation of doing it again and again and again. Checking to see if you are improving, and measuring that improvement. If I am handed a new assignment, one that I have limited familiarity with, I need to school myself and become proficient. That by definition will be based on a foundation of screwing it up multiple times until I finally learn how to do it right. If I don’t accept that reality, I will never achieve mastery at anything.”
The student understood. His attitude was adjusted and slowly… steadily… he improved.
Those of us who carry a gun, those of us who simply own guns, have a responsibility to become Masters at Skill at Arms. That only is achieved by doing… over and over again.
With rights come responsibilities….\
You have the Right to Keep and Bear Arms….. you have the Responsibility to train! When training you have the obligation to accept your reality at that moment… and push yourself knowing that the road to perfection is paved with the trails of failure.
Navigation of Byzantium…
A few weeks back, one of our clients at Artemis came to us for legal representation. Well… that is probably too strong a phrase. Maybe legal “assistance” would be a better way of saying it.
You see our client, a law abiding citizen with no connection to the criminal justice system had become a victim of the criminal justice maze of madness.
The facts are interesting:
Back in 2000, our client’s father passed away. He decided to move his mother to Las Vegas to allow her to get on with her remaining years. Unfortunately, but not unexpectedly, she became scared in her new environment. Her son not wanting her to be living in constant fear, gave her one of his revolvers. He told her to keep it by the side of her bed.
A year later mom was now dating. Unfortunately, mom was now dating the wrong kind of guy. Her beau decided that a new go kart trumped budding love and decided to steel the gun and use it to trade it in for a hot set of wheels. Fortunately, mom had the presence of mind to give the dead beat his walking papers then informed her son about the theft.
Well, as you can imagine the son lost his mind. He immediately called Las Vegas PD and reported the theft of the gun. He was given assurances that everything that he needed to do administratively had been done and he proceeded forward with his life.
Then 2011 came along…
Many of you may remember the case of Brian Stow, the Giant’s fan that came to LA to watch a Dodger’s game and had the unfortunate luck to be wearing a Giant’s jersey while at the game. Apparently, this displaying of colors was too much for the LA gangsters that frequent Dodger’s stadium and they decided to release their rage on Mr. Stow.
The nearly fatal beating of Mr. Stow commanded the attention of Southern California, as LAPD desperately searched for his attackers.
A couple of leads panned out, and two gangbangers were collard up. During a search of residence of one of the suspects a gun was found.
YEP… “THAT GUN”
A quick serial number by the LAPD gang unit turned up a registration to our client. Yes… the gun may have been recorded as stolen in Nevada (assuming that LVPD actually filed paperwork), but that information was never transmitted to California.
Thinking that our client might be somehow connected to this case, the gang unit applied for and executed a search warrant of our client’s home. Taking ALL of his guns.
Within seconds, the detective at the scene realized that there was no connection between our client and the gangbanger…. still… a process was set in motion and it had to continue. Our client was not particularly concerned about getting his guns back, after all…. he was completely innocent.
Unfortunately, the search warrant and the property receipt he was given was not fully completed by LAPD. There was no case number, and no DR number on the property receipt. (The DR number allows for a quick cross reference for later retrieval.)
After a few months, our client called LAPD to see about getting his guns back. Unfortunately, no one knew anything about it. Without cross reference numbers, no one was willing to do any digging.
A couple of years went by and our client had one of his business attorneys make an attempt at retrieving the guns. Not knowing the process of the criminal justice system, he was also unsuccessful.
Finally… seven years after they were taken from him, he asked us to see about getting them back. After some detective work, and a round of sweet talking the property dispo officer at LAPD’s Northeast division, I was able to discover that the guns were still in existence… (we were seriously concerned that after this many years, they might have been destroyed)…and being kept by the LAPD gun unit.
I called my law partner Cosmo. He happened to be in downtown, LA at the criminal courts building on another matter. He hastily drafted a motion for return of property… did some detective work on his own to get some additional information that the court would want and went to file the motion. Interestingly enough, they were willing to hear that motion the same day.
As the DA entered the court room holding Cosmo’s motion, he asked what this was about. Cosmo informed him that it was for the return of property from a search warrant.
“What type of property?”
“Well good luck having that happen!”
From that point forward, things went downhill. The DA was steadfast… he did not want guns returned to our client. He wanted more time. He wanted Cosmo to stop talking… (yes… he literally said that). Cosmo granted the DA’s request for ten days to research the matter and scheduled another hearing for last Friday.
Both Cosmo and I were there for that one.
This time the DA was more amenable.
“The people have no objections to this return of property.” The DA began,
“However, I contacted an officer at the LAPD Gun Unit and they say that we can not release the following weapons…..”
He then listed off four weapons. One of which was an AP9.. this IS a banned weapon that became banned during the time that our client was not in possession of his weapons. We kinda saw that one coming, and our client was ok with not getting that one back. He also however listed a Derringer, a Rossi revolver, and a handgun of “unknown origin”. Other handguns were on the list to be returned as well as a couple of rifles.
Why hold back an the Derringer, a revolver, and a “handgun of unknown origin?”
Well the DA himself had no idea, but he was adamant that we should just accept what was given and be grateful. We explained that we would have to call the client before we made any decisions. Our client was understandably upset. More so, since the Rossi had once belonged to his grandfather… it was a family heirloom.
We marched back into court and informed the DA that we would accept the order and get the bulk of the guns back, but we could not accept just walking away from the others. We explained (in front of the judge) that the Rossi was a family keepsake.
The Judge suggested that we calendar a hearing for late August. We agreed.
The DA was less than thrilled.
“Well ok, but I’m going to have to get someone from the Gun Unit to come here and testify.”
Ummm… ok… that is sort of how this process is supposed to work.
I told the DA that I would be more than happy to contact his person at the Gun Unit and see if I could work something out before that.
For the first time he showed legitimate interest.
“Really? Wow… that would be great! Here is his contact information. Let me know if you are able to work something out.”
Walking out of the court, I became more and more upset. I started thinking of this case not so much in the micro of simply getting back these guns, but more from a civil rights case.
This whole thing is crap!
Imagine that this was not a Second Amendment case, but rather a First Amendment case. Let’s pretend that the State had served a search warrant on our client who ran a small newspaper and had a printing press that he generated political diatribes. (I know we all now use computers, but let’s say he was old school).
The State claimed that the press that he owned had been instrumental in some sort of crime. It hadn’t, but in good faith they could reasonably believe it had.
They then find out that our client had nothing to due with the overlaying crime, and by all rights his property should be returned. Yet they don’t.
In fact, they make the process so unbelievably cumbersome and complicated that it takes him seven years just to find someone that can make any progress on getting his property back. During that time he, loses his ability to make newspapers and by extension has his ability to engage in political speech reduced.
When finally pressured to return the press, the agency that seized it claims that only about three quarters of the equipment is available to return without providing any sort of reasoning behind it.
Civil Libertarians would be up in arms! As they should be!
So that is where we are currently at on this case.
It’s kinda pissing me off (as you can see)… and I will keep your all posted on the Dangerous and Exciting Caper of the Confiscated Guns…..
Dances With Brass
“If you feel hot brass go down your shirt… maintain muzzle discipline… keep that gun pointing down range and embrace the suck! Just grunt to yourself and say ‘murica!” So issues the immortal words of our instructor John V. during each of our range days.
Each time we go to a live range, we need to perform a safety briefing, and that safety briefing by definition needs to include a comment on maintaining muzzle discipline during the almost inevitable “brass dance”.
Modern semi-automatics eject the spent brass through the ejection portal located on the right side of the firearm. Depending on the firearm, this brass can launch anywhere from a couple of feet to the right of the shooter to upwards of twelve feet. The brass typically follows an arching path. Unfortunately, the temperatures of the brass leaving the chamber is pretty darn hot. That means, that if the brass lands on the exposed skin of someone standing to the right of the shooter, they can theoretically have a flinch response.
When that person having a flinch response has a gun in their hand, a potentially catastrophic situation can occur.
This happened last week at one of Southern California’s local ranges… and it needs to be discussed.
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We use Col. Coopers Four Rules of Safe Gun Handling:
Treat all guns as if they are loaded
Never allow the muzzle to cover anything you are not prepared to destroy
Always keep your finger off the trigger until your sights are on target and you have made the decision to shoot
Know your target and it’s environment.
Most of us have been exposed to these rules in the past, and “most” of us follow them as though they are divinely inspired religious doctrine. Some, unfortunately commit a form of heresy and follow them “most” of the time.
In religion, there are different levels of doctrinal observance. (Reconstructionist Jews and Cafeteria Catholics know what I am talking about.) In our world of gun handling, this level of blasphemy is not to be tolerated… not now… not ever.
Yet like religion, there is the academic, and then the practical. While the Decalogue might have given us ten rules to govern our lives the governance is not solely about the social events that we partake in…. rather, there are some that are to govern the way we think. I can clearly refrain from committing murder… but what about “coveting”? I can covet without committing an outwardly act.
Gun commandments are different though. They are exclusively outwardly acts. They are strict liability events. The motivation behind the handling of the gun is utterly irrelevant, if one of those four rules that Col. Copper articulated was broken, there are no justifiable excuses.
Yet there are times that environmental events can cause… well… a focus away from those four rules and instead a focus on the perceived immediacy of the event at hand.
That is what happened on the Fourth of July at a local Southern California range. A woman who was shooting in a public bay fell victim to a spent casing that went down her shirt. Rather then keep her muzzle pointed down range, her focus became getting the hot brass off of her skin. She bent over and used her left hand to tug open her shirt. Her gun hand… with the gun in it… swept forward and pointed laterally down at the other shooters to her left…
Violation of rule number 2.
During her frantic dance to dislodge the brass, she also kept her finger on the trigger…
Violation of rule number 3.
Her gun went off injuring herself to a limited extent and the shooter next to her some what more extensively. He had to be rushed to the hospital.
The sad thing is that this could have been completely avoided.
From a precautionary standpoint, she could have worn clothing that would prevent a brass case from going down her shirt. If that was impossible or impractical, she could have been mentally prepared for the possibility of this occurrence and as such prepared to bear the temporary pain and keep the muzzle pointed down range…
As John would say…. ‘Murica!”
Regardless… her adherence to the rules of safe gun handling should have been so doctrinal, that even if, a single violation had occurred the presence of a second would never have taken place.
You see… for someone to be injured by a firearm, a minimum of two rules must be broken. If only one takes place there maybe a negligent discharge… but no injuries will occur. When two rules are broken, all hell can break loose, and people can be injured or killed.
Folks… be passionate in your training. Train every day, train constantly, train consistently, and train with purpose…. but also keep an eye on those around you.
Everyone at the range is a range safety officer. If you see behavior that violates the Four Rules, pleasantly explain that the offenders behavior needs to cease. If it does not… inform a range safety officer. If it still continues…. LEAVE THE RANGE.
We must all be passionate adherents to Col. Coppers Commandments… and we must not tolerate heresy!
Duncan v. Becerra…. The Injunction
So, there are precious few times in the jurisprudence of firearms law where I get to sit back, smile, and pour myself a glass of whiskey… knowing that the legal system has rendered a decision that is not only based on a rigorous study of fact, but one that is firmly grounded in the Constitution.
Heller v. District of Columbia was the big one. The late Justice Antonin Scalia wrote the seminal opinion on the Second Amendment, for once and for all banishing the “collectivist” theory of the Right to the ash bin of history and articulating that the Second Amendment is a “fundamental” individual right.
McDonald v. Chicago was another. Justice Alito’s decision reaffirming Heller and further articulating the Second Amendment as a right incorporated to the states via the 14th Amendment allowed me to raise my glass again to the Founding Fathers.
In the three judge panel in Peruta… Justice O’Scannlain got it right. His excellent opinion, a thorough examination of the history of the Second Amendment, and the understanding that the word “bear” does not mean… as Justice Thomas opined “the mere ability to carry a gun from the bedroom to the kitchen” …. more whisky please!!!
… and then there is Duncan v. Becerra.
California enacted a general magazine ban that would have made the mere possession of a magazine capable of holding more then ten rounds a fineable offense. This law was scheduled to go into effect on July 1. In the final hours before the law were to have gone into effect, it was effectively put on hold by the issuance of a preliminary injunction issued by the District Court Judge Roger T. Benitez.
You can read that opinion here: http://michellawyers.com/wp-content/uploads/2017/05/Duncan-v.-Becerra_Order-Granting-Preliminary-Injunction.pdf
The Honorable Roger T. Benitez did not hold anything back.
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First off, a preliminary injunction will only be issued if the judge feels that the party asking for the injunction is more likely than not to prevail at trial. Second, an “irreparable harm” must accrue to the party if the injection is not given.
Judge Benitez recognized that both would apply.
His decision begins with the phrase: “On July 1, 2017, any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin their new life of crime”
Well, that sets the tone doesn't it?
Within his lengthly decision, Judge Benitez offers some awesome legal tidbits.
On page thirteen, line thirteen… he proffers this statement from McDonald:
“Some may fear that the right to keep and bear arms means citizens hold a right to “possess a deadly implement and thus have implications for public safety,” and that “there is intense disagreement on the question whether the private possession of guns in the home… increases or decreases gun deaths and injuries.” McDonald, 561 U.S. at 782-83 (argument of the City of Chicago). True enough. But, public safety interests may not eviscerate the Second Amendment. “The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.” McDonald, 561 U.S. at 783 (collecting cases where those likely guilty of a crime are set free because of constitutional rights).”
I LOVE THAT!
We would never consider abandoning the Fourth Amendment because some criminals are acquitted due to Fourth Amendment violations… yet we parse down the Second Amendment to a second class right, because some criminals misuse the access to guns that comes with the Second?
“Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example… ‘implies a corresponding right to obtain the bullets necessary to use them.’” Luis v. United States, 136 S. Ct. 1083, 1097 (2016)”
Sorry 9th Circuit, your sophistry has been rejected. The idea that a magazine is not protected by the Second Amendment does not pass the smile test. Even if we were to posit that the magazine was so unique and separate from a firearm that it was not “part of the gun,” the fact remains: that they would be protected as ancillary needs for an individual to exercise their fundamental right to keep and bear arms.
In the end… my favorite part of the option was this:
“1. Defendant Attorney General Xavier Becerra, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing California Penal Code sections 32310 (c) & (d), as enacted by Proposition 63, or from otherwise requiring persons to dispossess themselves of magazines able to hold more than 10 rounds lawfully acquired and possessed.
2. Defendant Becerra shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. The government shall file a declaration establishing proof of such notice.
IT IS SO ORDERED.
DATED: June 29, 2017”
So there you have it. A brief glimmer of hope in an otherwise depressing sea of California legislative gun control. We must celebrate when we have a victory! Can you run out today and buy standard capacity magazines in Anaheim?…. of course not. You couldn’t do that last week either. But if you have acquired your magazines legally, through a non - legislatively proscribed manner, you are not mandated to destroy them or ship them out of state.
Thank you your honor!
July the 4th
There are few days that hold reverence beyond that of the Fourth of July. Not necessarily because of the historically accuracy of the date. (The resolution was introduced on July the 4th 1776, but it would not be formally signed until early August of that year.) Yet, officialdom notwithstanding the date, the resolution when introduced may in fact be the best date to celebrate the “birth” of our nation.
You see, the Declaration as a document is really nothing more than a simple piece of parchment. The ideas contained on that parchment, the philosophy codified on paper by our Founding Fathers transcends a simple list: grievances against King George. The ideas mark a revolutionary principle in political thought. A declarative statement by a government that the power the government wields does not rest with the government itself. Rather, the power comes from the people governed and they in turn receive their power from the Creator.
There were many reasons why we fought our Revolution. Those that subscribe to Marxist theory would state that our Revolution was a natural result of systemic market pressures. Academics and sociologists that rely on a tribalism paradigm would acknowledge the market based approach by the leaders of the Revolution, but mostly focus on the tribalism exhibited among the colonial combatants.
Both of these miss the point.
Each individual that fought and supported the Revolution did so for a variety of reasons (sometimes even conflicting).
Some fought for the “rights of Englishman”.
Some fought for the sovereignty of their own state.
Some even fought for no other reason then the sheer enjoyment of fighting.
All however, took up arms against the Crown, fought for one unified principal: The idea that power resides with the people…. not the government.
This is important. The shared experience of the Revolution created the value system and reinforced the political theory established in the Declaration. Ultimately giving rise to our present Constitution and more importantly, the recognized rights codified in the first ten amendments to that document.
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There are many actionable passages with the Declaration, but the “biggie” is the one most people are familiar with:
We hold these truths to be self-evident. That all men are created equal and endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed.
So… grab a cup of coffee and join me as we deconstruct this clause in honor of our two hundred and forty first birthday.
“We hold these truths to be self evident”
What is the importance of the phrase “self-evident”. Everything. You see, self evident means that empirical evidence is not necessary. We do not need to “prove” that the Sun rises in the East. Nor do we need to “prove” that people have a natural yearning towards freedom. We do need to prove through inference more complex theories. If A=B and B=C we can surmise that A also = C. Yet we do not need to prove what A, B, and C are… for their existence (in this postulate) self evident.
“That all men are created equal”
So, the Founding Fathers used the language appropriate at the time. Yes, women were excluded from this political philosophy, formally at least, but that does not negate the value of the equation. Once, we as a society became enlightened to the equal status of women and minorities, the word “men” could be easily expanded to be inclusive of all humanity.
With that out of the way let’s not be distracted by the sexism and let’s focus on the more important word: equal. When equality exists at birth the justification for social status based on “mere existence” becomes intellectually dubious. I cannot claim a superior status based on my lineage… I can, based on my accomplishments and my contributions to society as a whole, but not simply on the fact that “I am”. When we strip away the awards, the bank accounts, the portfolios and the titles, we all share one thing in common… equality in the eyes of the creator.
“and are endowed by their Creator with certain inalienable rights”
This is important.
Rights must come from somewhere. They cannot come from the government. If they do, then they are dependent upon the regime in power at any given time. They must come from something transcendent beyond mortal men. They must come from something higher. Something that is universal and timeless. The Founders identified this being as the Creator. The use of this word was not by accident. They could have easily said “God” but, they didn’t. The Creator is much broader then that. The Creator is synonyms with God. It is also synonyms with Gaia, Mother Nature, the Force, the Pasafarian Spegetti Monster… whatever you want to call Her/Him.
This expansive concept of the Creator is also critically important.
The Declaration does not demand the adherence to a Judaeo-Christian God. To be sure, we were crafted under a Judaeo-Christian construct but, the theory behind the Declaration is even more expansive than that. The Declaration was not written for the group, but for the individual, and my necessity, it is self-evident (remember that phrase?) that all individuals were created by… well a Creator.
Now, since they were created by a Creator, they were also granted essentially all the rights that exist in the universe. This is because the Creator does not create governments. Governments are created by people. Yet the “people” must be invested with the power to create the governments that regulate their behavior. This power is in the form of “rights”…. rights that are transferred to the government for the empowerment of that government. The Declaration tells us to be on notice however: There are certain rights that are “inalienable” meaning that they can not be relinquished, even if the individual wants to. Certain rights we are stuck with, weather we like it or not.
“That among these”
Forgive me for wearing my lawyer hat on this one, but this little sentence is critical. “Among” is the word that needs our attention. “Among” posits that this is not a closed universe. The Declaration is about to direct our attention to three inalienable rights… but we are on notice… there are more then simply these three.
“Are life, Liberty and the Pursuit of Happiness:
Ok… let’s take these one at a time.
“Life”… well this seems obvious. We must retain our right to exist. If we transfer to the government our right to exist then by definition we retain nothing. The government switches from being subservient to the people, to the people being subservient to the government.
“Liberty”… what then is “liberty”? Well, taken at its most basic level… and in constant tension with the idea of government… is the fundamental idea that we as individuals should be free from governmental coercion. Yet, we also institute the government to secure our liberty. This seems to be a contrarian argument. And, to an extent it is. That tension is part of the human condition, yet the Declaration for the first time acknowledged this duality and sought to shift the balance clearly in favor of the individual.
“The Pursuit of Happiness”
Happiness is the most generic of terms. Happiness is also not a universal concept. What makes me happy… (analyzing this stuff from a political theory perspective)… most likely does not make all of you “happy”. Watching Dancing with the Stars, is a recipe for the initiation of my own suicide… but ratings would suggest that there are many out there that do find “happiness” in this. Since happiness is a uniquely personal phenomenon, individuals must be left to their own devices to identify what makes them happy, then purse the means necessary to achieve it. They may never actually achieve the happiness that they desire… In fact, they may realize that what they thought would bring them happiness in fact brings them misery. Furthermore, on a more spiritual level, the Founders would have posited that the pursuit of Happiness is the actual joy… achievement, is an inherently elusive goal.
“That to secure these rights”
These rights, while they are fundamental to the individual, can be meaningless if the individual is targeted by the majority.
“Governments are instituted among men”
So.. the government is a third party that is crafted with one singular purpose: To make sure that individuals are able to enjoy at the very least the three rights granted by the Creator and specified in the Declaration… Life, Liberty and the Pursuit of Happiness.
“deriving their just powers from the consent of the governed”
Finally, the “BIGGIE”… Government is empowered by the people. They also by definition have the inherent right to withdraw their support of the governed. When this happens the government must be changed… or if change is refused the government becomes illegitimate, and power automatically returns to the people for them to enact a new government.
This is what is typically referred to as a revolution.
Our Revolution was based on these principles. These principles guide our basic fundamental understanding of our own government as well as an understanding of ourselves.
This idea, this belief, that power comes from the governed. That Life, Liberty and the Pursuit of Happiness are inalienable rights are the cornerstones of one of the greatest human achievements of all time. This philosophy, crafted by geniuses, and protected throughout our young nations history by the blood of patriots is the reason we celebrate the Fourth.
Take a moment this Fourth of July to reflect on those that have fought, died, and risked their lives, their fortunes and their sacred honor….. so that you can be free.
Persuasion through Violence
“War is merely diplomacy through other means”… Carl von Clausewitz wrote that in his seminal work On War (Pub. 1835). He had a point when it came to the engagements between nation states.
When it comes to civil society, the use of violence is singularly an act of tyranny. Regardless, if the power of pain comes from an instrument of the government, the collective, the abusive spouse, or the common street thug… violence, and the use of violence to shape the behavior of another is rooted in a singular principal: Narcissism.
Last week we saw narcissism on display in Virginia. A malcontent attempted to assassinate members of congress since they would not agree on his world view. Reports would suggest that his desire to control the destinies of those around him have been going on for quite some time. Foster children relegated to his care have suffered continuous victimization at his hands. (In one instance going so far as to terminate her own life rather than to suffer at his hands any longer.)
Interestingly, the typical reactions from neighbors when a monster is reveled were not present here. Normally we hear “He was such a nice man!” “I can’t believe he would do that”, and other protestations from those that live in denial.
Not so in this case.
Here… neighbors were quick to point out that he is a slob of a human. My favorite was “I’m not surprised… he’s a mean little bastard.” Spoken by his next door neighbor.
But let’s get into the weeds for a moment and look at the motivations of his actions… for they mirror the motivations of countless others that have taken up the use of violence in our civil society as a means of achieving a political objective. (Well… that may be a bit presumptuous on my part frankly… there is a good chance that they are using violence primarily because doing so makes them feel part of a collective. Perhaps it is pure tribalism… my tribe will make war on your tribe for no other reason then to do it.)
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Our system of government, popular representative democracy, has survived for over two hundred years for a very specific reason built into our Constitution. A singular belief that power emanates from the “People” and that regardless of the minutiae of our civil society, there are certain aspects of the lives of individual citizens that cannot be touched.
We can kvetch about the way people behave, but we cannot use the power of government to force people into behaving differently.
Said another way: I might disagree with you, your lifestyle, your choices… I may choose not to associate with you because of your choices… or maybe simply because I am a jerk… regardless of my motivations I am powerless to use the tools of government as a means to alter your behavior to be inline with my preferences.
I am totally allowed to use my powers of persuasion to educate you to your misguided ways… but you are in turn free to ignore me… or if necessary make me a pariah, to warn others of my arrogant ways.
What you… nor I… cannot do is threaten each other with violence due to our beliefs, or use violence to threaten others from hearing our message.
This fundamental underpinning on the rights of the individual is what ultimately leads to our longevity as a nation. We can bitch about “stuff”… but there is certain “stuff” , we cannot change… we cannot even attempt to change. The knowledge, that the individual is sacred. It creates predictability in our system of governance… and ultimately gives solace to those that failed to persuade the majority to their point of view.
See… I may have failed to convince you that we should all own guns, but at the end of the day it really does not matter, because the State’s power to take my guns away is supplanted by the Constitutional protections of the Second Amendment.
(If you coughed while reading that last line, I completely understand.)
But therein lies the problem.
As our trust in the edifices of power and the Constitution wanes, (as it has since the 1960’s) our reliance on the protections of that document are also degraded. Without an almost religious adherence to the protections of the minority codified in the Constitution, the value of the Constitution is cheapened to mere paper.
When a class of individuals… people that have enjoyed systemic power for more than a generation… suddenly feel that power base threatened, they do not stop and reevaluate their message… they turn to violence as a means of poking the new administration.
This is particularly dangerous, not just for those at the receiving end of barrel, or a broken beer bottle… it is dangerous for the longevity of our society as a whole. It is… at it’s core, an existential threat to the concept of individualism and freedom.
After 9/11, we passed the Patriot Act. This was designed as an intelligence gathering tool to prevent further acts of terrorism. Within a year, a US attorney was boasting about a drug running trial in Washington State that she had prevailed in, using evidence that was obtained through tools established in the Patriot Act…. an act as drafted that NEVER should have been used to obtain evidence for anything other then terrorism.
This scared the hell out of me! For when would the use of the provisions of the Patriot Act be used by the government for very very unpatriotic things?
It also illustrates a point. Once you build “it”… or create the justification for “it” to be built in the first place… the “it” you sought may turn into something that you could never have envisioned.
Violence… the ultimate “it”… must not be tolerated. The government has tools… existing tools… to combat the use of violence by those that would seek to use violence as an agent for change.
But we must also combat violence ourselves. We must be ready to protect ourselves against violence. The great irony is that ultimately, we must be willing when necessary to use extreme violence as a response to a violent act.
The shooter in Virginia was stopped because of the brave actions of two capitol police officers that brought war down upon the shooter. One officer wounded… but staying in the fight to protect the innocent.
We must not now… not ever… allow tyrants to dictate our way of life!
When a group of individuals are prepared to defend themselves against the actions of tyrannical malcontents, the actions of those monsters are mitigated before they begin. If the slugs are so foolish as to proceed with their acts of violence, then the devastation they bring is marginalized by the presence of those patriots that will stand and defend the Constitution against all enemies, both foreign… and domestic.
"This bill would restrict someone’s ability to acquire more than one firearm during any 30 day period of time… there is nothing controversial about this…” So spoke California State Senator Anthony Portantino (D-La Cannada Flintridge) during an introduction of his bill SB-497 which would restrict the ability of anyone to acquire more than one firearm during any 30 day time frame.
Private Party transfers, Long guns… it does not matter. If it goes bang, you can only acquire one every 30 days.
This creates some logistical issues with certain transfers.
What happens when someone wants to transfer his collection? What happens when someone receives an estate inheritance? Or an attorney takes ownership of his clients guns as a means for a fee waiver?
It does have some exemptions… of course.
Law Enforcement is exempt. (Law Enforcement that is “active”… not law enforcement that is retired). This creates some interesting complications that the Peace Officers Union is going to have to deal with… specifically regarding their carve outs for SB 880 (assault weapons) since they now must argue that a rational basis exists for that carve out… but not for this one.
It also interestingly exempts those with valid hunting licensees, as well as those that win guns at charity events.
Many charity events…. especially hunting related charity events, use firearms (typically, though not exclusively rifles) as a means of generating funds. It is not unheard of for a participant to win two or three rifles and shotguns during a fundraising event. If they were not exempted from this new proposed legislation, the process of raffling off guns would become so commercially unreasonable, that it just wouldn’t be done… and as a result the amount of money generated would suffer.
So this is all fine and good, but what is the point?
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Senator Portantino has a dubious history of generating one dimensional legislation that ultimately comes back to bite him and his group of collectivists. He was the author of California’s Open Carry Restrictive bill. Yes… that one. Up until his legislation, the argument could be made that you had the right to carry a firearm outside your home, (it just needed to be unloaded). The CCW was nothing more than a “time, place and manner” restriction. Once his law went into effect, the only way to carry a firearm outside your home (legally) was through the use of a CCW. Portantino may have inadvertently set the ground work necessary for a legal challenge via Peruta to be heard by the Supremes. That could result in a recognized right to bear arms outside your home nationwide.
If this ultimately happens, we can all thank Senator Portantino for setting the case in controversy in place. (I’m sure he is thrilled about that!)
Seriously though.. what is the benefit of this new proposed legislation? What crimes will it be able to prevent? What benefits to society do we achieve by its adoption? The answer is of course… none.
But there is a nefarious side that might quite possibly benefit the anti’s:
Less places to buy guns.
To understand this, you must also take it in conjunction with another piece of proposed legislation SB-464
This little gem was introduced by Senator Jerry Hill (D-San Mateo) and it has one singular purpose in mind… putting gun stores out of business.
There are many people that have FFL’s in California. Not all though are on the Centralized Firearms Dealer list. This is the list that the State has created that you must be on to perform a legal transfer of a firearm in California. By being on the list, gun stores can log in and complete a DROS or Dealer Record of Sale.
SB-464 would require that all FFL’s (not just the ones on the Centralized Dealer List) enhance their security features to a commercially unreasonable level. Places like Artemis that provide DROS services essentially at cost as a benefit to members would simply have to cease performing transfers.
Small mom and pop gun stores would have to shut their doors.
You see, the costs associated with the level of protection that the bill envisions can easily reach the hundreds of thousands of dollars. Large stores such as Bass Pro with multiple streams of revenue may well be able to absorb the costs. Small stores will have to rely on passing on the additional costs related to security enhancements into their price of their products.
But wait… SB-497 will limit the sale of one gun to a customer each month. Basically, the very best customer a gun store could hope for has a maximum buying power of twelve guns per year.
They simply could not possibly push through the costs of SB-464 onto their customer base.
The result is shutting down. (Or at least shutting down the firearms transfer component of the business.)
So… all this has been a study of the practical… but what about the underlying philosophy?
The Second Amendment recognizes the right of the people to keep and bear arms. To those that are entrenched in power, this has historically bothered them…. but so have other parts of the Bill of Rights.
The Fourth Amendment, the Fifth Amendment, the Sixth Amendment. They have been thorns in the side of government from the beginning of our experiment in popular democracy.
What if we were to ration them as they seek to ration the Second?
You are only entitled to the use of your Fourth Amendment right against Search and Seizure once during a 30 day period of time. You can only go to a church of your choosing once during a 30 day period of time… because after all, no one really needs to go to church more than that. No one needs to be secure in their effects and their privacy more than one time a month.
We would be livid, if an elected representative even contemplated such laws out loud, much less sponsored legislation to enact them.
Yet when it comes to protection of our most basic civil right codified in the Second Amendment, we throw up are hands and shake our heads. “This is California”.
When a tyrant attempts to expand power beyond their enumeration, they must be met with swift reprisal. The mere act violates the compact of the governed and they become illegitimate.
Genteel acceptance is the providence for slaves. We must never willingly drape ourselves with chains.
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