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This one is for you, Pops…
With the election behind us… (Congratulations, Sheriff-Elect Don Barnes, and keep up the fight in November, Congressman Rohrabacher!)… I seriously thought about doing an election analysis for this week’s blog. Being a political junky, Tuesday night elections are the equivalent of the Super Bowl for me. That said, one of the things that is spectacularly irritating is the various analyses of elections that don’t offer any great insight, other than to rehash the actual election. As I assume all of you share the same dislikes I do, I will spare you that annoyance.
Instead, I want to focus on another upcoming “day”… Father’s Day.
Specifically, I want to focus on the relationship that I have with my own father, and the reflections I have in light of being a father myself.
Father’s Day, like Mother’s Day, has become an exercise in Hallmark cards, brunches and gift-giving. While we do well to honor those who are fathers, we frankly spend little time in retrospect as to whom these men actually are, primarily a result of having lived our lives with them. We know these people, we understand their complexities and, having suffered through numerous disputes with them over the years, understand their own fallibility.
There comes a point, though, as adults when a unique realization occurs.
Each of us has suffered, or watched others suffer through extreme times of emotional distress. As children, we look to our mothers and fathers as guides to help us understand how to navigate these dark times. We remember these instances, for oftentimes they are the defining points which have led us to who we are as adults today. We also remember the guidance our parents gave us… for good or ill, for like the event itself, the response to the event is often revealing.
This reflection often happens when we realize we have transcended the age that our parents were when our “childhood event” occurred. When we have the enlightenment of experience to realize our parents were mere children themselves when they were suddenly thrust into this situation, we are often humbled by the sheer intellect of their actions so many years ago, or warmed by the compassionate knowledge they did “the best they could with what they had.”
(If you have arrived here from our newsletter, continue reading here…)
When I was six years old, our family suffered a catastrophic event. My younger brother, who was only three at the time, succumbed to an acute infection of meningitis. My young parents were utterly devastated. I was massively affected by the loss as well, but on a different level. I was suddenly forced to learn the underlying realities of mortality, as well as the sudden knowledge that my dear brother was no longer to be a part of my life.
My parents, on the other hand, two people who were in their early thirties, suddenly had their lives, as they knew them, terminated.
Back then psychological counseling for grief was nonexistent. Really the only support system that existed at all was clergy, and our relationship with the synagogue became stressed.
I distinctly remember a few weeks after Craig’s death, my father, who was desperately trying to keep me from sinking into depression myself, sat with me to watch a cartoon version of the novel, Charlotte's Web, which was showing on TV.
There is a point where Charlotte, the spider, dies.
I looked back at my father who was sitting in his chair and saw a single tear streaking down his face as he sat stoically with me. When he realized I was watching him, he smiled and asked me how I was doing. The juxtaposition of him trying to be “cheerful” with the wet streak of a tear on his face, taught me more about dignity and compassion than anything I have ever read then or since.
A few months later, my parents noticed I was struggling coming to terms with the loss of my brother. I had, for one reason or another, attached myself to a stuffed Winnie the Pooh doll.
As an eight-year-old boy there was absolutely no justifiable reason I should be so needy of this doll to be in bed with me when I went to sleep. It gave me a measure of comfort, though, and my parents felt little need to wean me from it.
In an effort to get on with the business of life, my two grief-stricken parents decided the three of us should take a trip to the East Coast. I remember little of that trip, except for the fact that we went to Washington, Philadelphia and New York. It was in New York that a secondary tragedy occurred.
Evidently, when I was packing up my stuff at the hotel in Philadelphia, I neglected to secure my coveted Winnie the Pooh doll. When we reached New York and I was getting ready to go to bed on the rollaway cot in my parents’ hotel room, I suddenly realized Winnie was not there.
I was completely devastated.
My father wanted to protect me, to ease my pain. There was little he could do, though. As I sat there bawling, he turned to my mother and said, “I’ll be right back.”
A few minutes later he returned to the room with a paper gift bag from the lobby gift store. He handed me the bag and took a step back with a nervous and hopeful look.
I opened the bag and pulled out two tiny stuffed animals…. a walrus and a lion.
I held each in my hand and looked at my dad and said, “What am I supposed to do with these?”
Instantly, I started crying again.
I look back on that event and realize how much pain I must have caused my father at that time. He was desperately looking for something… anything… that could mollify my pain, and I completely missed that at the time. I was so psychologically damaged that selfishness and lack of empathy dictated my emotional responses.
I’ve thought about that day many times over the years. Each time, I well up with pride that the man who raised me had the capacity to push through his own grief to do what he thought would be best for me all the time. What still gets me, is that he had the presence of mind to do this when he was almost 15 years younger than I am right now.
I’ve told this story to Sandy and my kids over the years.
This year we knew that I was going to be alone on Father’s Day. Carolyn is living in Sydney, Australia, and Chaney won coveted spots at West Point and Annapolis Summer Seminars. Sandy took Chaney to the East Coast last week, and they won’t be back until after Father’s Day has passed.
Before they left, Carolyn “FaceTimed” us, and with all of us in the same room, Chaney gave me their gift to me.
I opened the 5.11 bag (Nice touch girls!).
Inside was a brand new Winnie the Pooh doll.
The pride that I felt at that moment in my girls, and my own father, was incalculable.
To all of you who are fathers, to all of you who have fathers… we are men…which means, as my wife tells me, we are deeply flawed.
But, we do the best we can with what we have.
Be secure with the knowledge that it is never the grand things that will be remembered. It is the little things… like running down to a gift shop at nine o’clock at night to get a struggling child a walrus and a lion. Those are the things that will define you not only as a man… but as a father.
While this should not be surprising to anyone… Liberty was dealt another blow this last week in California.
Danny Villanueva and some of his cohorts decided to sue California Attorney General Xavier Becerra and some of his buddies about the whole DOJ “assault weapons” registration scheme. Specifically, they thought that the method DOJ used in getting the rules approved through the Office of Administrative Law was problematic (read: illegal), and, thus, the registration process should be scrapped entirely. Their main issue was the DOJ used a method called “file and print,” which bypassed the typical “file and comment” statutory requirement. Basically, DOJ knew that its proposed regulations went beyond the scope of the legislation, and it did not want to be called out on it. By using file and print, no one would have the opportunity to comment on the proposed rules and point out the obvious problems with them. Metaphorically, DOJ wanted to shove these rules down the throat of the body politic.
So Mr. Villanueva sued, and Fresno County Superior Court Judge Mark Snauffer said… (of course I am paraphrasing)… ”Oh, come on, don’t sweat the small stuff; DOJ rules stand.”
The decision is chock-full of quotes from other decisions that would make any civil libertarian cringe with disgust… but my favorite gem is this:
“…the legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory shame was not politically achievable. The problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be and unscientific.” (Kaser, supra, 23 Cal.4th at p. 487”
What the f#$k?!?
Let’s philosophically expand on this, shall we?
So, let’s review how we got here in the first place…
The legislature passed SB 880 that said, statutorily, the bullet button on an AR-15, which for years had been considered an adequate method of making the magazine “fixed,” and, thereby, removing the weapon from the “assault weapons” category, would no longer suffice. (Basically, if the weapon after January 1st had a bullet button on it, it should be recognized as a detachable magazine, and… if one or more “evil features” are present on the gun, voila… you have an “assault weapon.”)
So what is a law-abiding citizen to do?
Well, one of the options is to take advantage of a statutory time frame where lowly subjects (sorry, citizens) are allowed to register their weapons as “assault weapons.”
Cool… So let’s think about this for a minute. If the weapon is registered as an “assault weapon”… and the whole purpose of the bullet button was to make it not an “assault weapon,” then it would stand to reason that once statutorily recognized as an “assault weapon” there should be no need for a bullet button at all.
In fact, many of us recognized this and thought, as we approached January 1, that registration made perfect sense.
But, DOJ in its promulgated rules (yeah… the ones that they forced down our throats without a comment period) essentially created a new class of “assault weapons.” We call them “bullet button assault weapons,” since once registered they MUST retain the bullet button post-registration.
Ok… so now onto the philosophical part:
You need to understand that laws, all laws… no matter how seemingly benign or necessary…are infringements on personal freedom. Sometimes they are absolutely necessary for a society to be at peace… but, make no mistake, they are freedom-limiting devices. Our Framers completely understood this, as did Cicero and Aristotle. Thus, a democracy is devised to make the development of laws a difficult process.
You see, once a law has been enacted, implicit in that law is the threat of violence.
We craft a statute and, for the statute to be enforced, people with arms who have been sanctioned by the State, are mandated to use violence, or the threat of violence, to ensure the law is followed. This coercive power of the State was of extreme concern to our Framers, so they built in layers upon layers of protections for citizens. Most of you are aware from high school civics that we have a checks and balances system to prevent governmental tyranny. But the prevention against tyranny actually starts at the rule-making process itself.
The legislature makes law.
Why the legislature of all places? What do legislators know about a particular subject? Well, many times, not a whole hell of a lot. What they do have is the Sword of Damocles hanging over their heads every two years. Yep, if they start behaving badly their constituents get to fire them. So, to inoculate them from those pesky constituents, they often times demand a “watering down” of legislation to make it more amenable to specific constituents. This is “sausage making,” and it is specifically intended to be difficult to get legislation passed.
Again, the Framers understood that ALL laws limit freedom, so the only way to truly strike a balance between the enumerated powers of the government and the rights of the citizens, is to force law making to be confined to the crucible of the legislature.
Unfortunately, in California we have developed the Office of Administrative Law.
Basically, we allow the legislature to make laws, and then executive agencies create executive rules (which have the force of law) that create a greater level of specificity in the actual application of the statutory law.
Here is the problem though:
When the legislature does not have the political ability to generate a law, it comes up with the “best it can get,” and rely on the executive agency (in this case the DOJ) to craft more stringent regulations than the legislature could politically achieve.
This is completely antithetical to the guiding principles of our Framers.
It also takes a major chunk out of general respect for the law. Tyranny is something that constantly needs to be kept at bay. Judges cannot exclusively act as technicians… if that were the case, they could easily be replaced with computers. Judges, like the lawyers who present before them, must stand as defenders of the Constitution and the philosophical principles that it codifies.
Sadly, this is not always the case.
“So, I get stopped by a law enforcement officer while I am transporting my long-range rifle to the range… Do I need to tell her that I have it in my trunk?”
“A law enforcement officer stopped me, and asked me if I had any weapons; I told him no…. but I now realize that I had my folding knife in my pocket… Should I have told him yes?”
“I don’t want to register my AR with the State because I don’t want to give it probable cause to search my home.”
“I do want to register my AR with the State because I want to deny the State probable cause to search my home.”
“If the State wants to come into my home and search it, who cares? It’s not like I have anything to hide.”
I get these questions, or hear these statements, weekly. Many CCW holders are passionate about being legally compliant, not because they are trying to build arguments or thwart prosecutions… it’s because they are legitimately good people who want to follow the law.
The intersection between the law and the private citizen involves certain Constitutional rights that need to be protected. More importantly, the contact between law enforcement and the private citizen is not an event that takes place in a vacuum between two emotionally-devoid robots. Implicit in that contact is the belief that the law enforcement officer is a professional, rational actor, and that the citizen is aware and educated in how to interact with an officer, and that the encounter is governed by a Constitutionally-mandated constraint on when, where, and under what circumstances the encounter can take place.
Unfortunately (and I really do mean unfortunately), we have adopted an adversarial approach to the trying of fact, as well as the ministering of justice.
What I mean by this: A defendant in a criminal case can challenge the underlying facts of the case. The State claims A + B = C. The defendant claims A + B = D. It is up to a jury to decide which of the above statements is “correct.” Once that determination is made, the adjudicated “fact” can be applied to the governing law. It is up to the State to make its case first. If defendants believe they failed to prove that A + B = C, they are are under no obligation to challenge it at all. Since the State failed to prove the proposition, the prosecution automatically fails. Alternatively, the defendant could demur, essentially saying “yeah… so what?” We are all agreed that A + B = C… The thing, though, is that there is nothing illegal about “C”… so why are we here?
Since this is an adversarial process, the fight ends up not being about the formula at issue… rather, it is about admitting and excluding evidence that tends to prove or disprove the State's case.
The first step in this adversarial process is that initial contact with law enforcement.
Typically, but not always, the State needs to have some level of probable cause before it can initiate a search of a citizen’s property. This is an evidentiary event. The purpose of a search is to gather evidence that can be used to support the contention that the individual committed an illegal act. Many times the purpose of the search is oriented towards a singular suspected crime. During the course of the search, however, evidence is discovered that may exonerate the individual of the suspected crime, but implicates the individual in an entirely different criminal act. Assuming that the evidence was obtained through a “reasonable” application of the initial sanctioned search, it is admissible at trial.
The most common application of this is something called the “plain view doctrine.” If the court issued a search warrant for a person’s home under the probable cause that illegal firearms were being sold, and during a search for guns and transaction records, the officers stumbled upon some unrelated, but unhidden, criminal activity they don’t have to ignore it. They can seize it and amend the complaint to include the new charges.
In the movies, this is usually under the scope of the police coming in to search under a warrant for narcotics and, suddenly, when they are in the person’s home, they find 20 dead bodies.
In the real world we have Lawn Darts.
Most law-abiding citizens are not overly thrilled about the idea of the State coming into their homes or searching their personal effects. Yet, the common refrain I hear is, “Well, I have nothing to hide anyhow.”
Perhaps… but, perhaps not.
Cosmo and I use the term “Lawn Darts” as a generic metaphor.
Growing up, lawn darts were a popular backyard game, like horseshoes. People would buy lawn dart sets at Kmart and leave the box in the garage. For those of you who have no idea what I am talking about… rejoice in your youth… then Google image them. These things were fun, aerodynamic, and, to be completely honest, spectacularly dangerous. They could easily be launched a hundred yards and came down with such force they easily could (and did) kill people.
They were eventually outlawed, and the possession of lawn darts became a felony.
Unfortunately, there are many people out there who legally bought them, and kept them without ever getting the memo that they became illegal.
What about the possession of expired drugs that the suspect still maintains or has possession of from a roommate who no longer lives at the address? Yeah… that is a crime too… a federal one.
There are a lot of people out there who are “law-abiding” who, when put to deep scrutiny, are inadvertently committing felonies.
Yet, these same people… me included… have a deep love for our law enforcement officers. The last thing we would ever want is to become distrustful or antagonistic to them. Quite the opposite, we want to assist them in whatever manner we can.
By understanding our Constitutional rights, and also understanding the potential liability that exists in unfettered statements and access, we can protect ourselves both physically as well as legally.
Rich, one of our Artemis instructors, who in the real world works as a Lieutenant for the Sheriff’s Department, has developed a class that I encourage all of you to take, “What to Do When Stopped by Law Enforcement”. This is both a practical, as well as legal, course (I will be there to talk about legal culpability implications). I think that anyone who legally carries a gun, or is interested in understanding the Constitutional protections and philosophical underpinnings of those protections, should take this course.
As we draw closer to the State-mandated “assault weapon” registration deadline, I have been fielding numerous calls regarding whether clients should register at all, or avail themselves of the three other alternatives: 1) Ship the firearm to the United States, 2) Install a fixed-magazine rig, or 3) Render the firearm featureless.
As many of you know, I was at first enthusiastic about the idea of registration… that is, until the DOJ promulgated rules that far exceeded the state legislature, rules that, I believe, will ultimately be rendered volitive of separation of powers. The legislature mandated that semi-automatic rifles, with certain cosmetic features, had to either have those features removed, or be registered as assault weapons. Beyond that, the legislature was silent. California DOJ unilaterally decided to go beyond the scope of the elected legislature and enact a stricter regulation than the legislature was able to achieve throughout the legislative process. DOJ literally created a sub-category of firearms called, “bullet button assault weapons.” These weapons come into existence when owners choose to avail themselves of registration. Rather then being designated as “assault weapons” as the legislature intended, they must be kept in the same configuration… utilizing a bullet button for a magazine release. Notwithstanding the fact that this makes, literally, no logical sense… it places the California DOJ in the untenable position of acting in an illegal fashion.
My position has been to reject this executive branch overreach, and essentially tell DOJ to screw itself by NOT registering “assault weapons.” Still, there were individuals who wanted to pursue the legal process. I have consistently advised them to either use the Law Offices of Lieberman & Taormina (or any other licensed attorney for that matter) to assist with the registration process… but, under NO CIRCUMSTANCES ATTEMPT TO REGISTER THEMSELVES.
What follows is a cautionary tale:
(If you have arrived here from my newsletter, continue reading here…)
Last week my friend, Dave, sent me a link about a California subject named Jeffrey Scott Kirschenmann. Mr. Kirschenmann did not use the services of an attorney, and is now being arraigned for over ten felony weapons charges. I am upset that Mr. Kirschenmann finds himself in this position, and I suspect negligence (perhaps even arrogance?) might be at the heart of his legal problems. The intensity of my anger is directed at the State, however, for allowing a situation like this to manifest in the first place.
To put this in perspective, imagine the following scenario:
The State of California has enacted a law which mandates that all current gas go-carts be secondarily registered with the State. You have other options, of course; you can modify the gas go-cart into an electric one, or you can just remove the engine all together and have a horse-drawn carriage.
Before registering, you need to prove where and when you purchased the go-cart. If you don’t know, or failed to keep the original receipt, you will be prohibited from registering and, thus, must avail yourself of the two other options. There was an actual lawsuit about this wherein the plaintiffs argued they were under no legal obligation to keep the original receipts, and now should not be punished for the failure to keep their records. The judge responded to their pleas by essentially saying, “Yeah… I don’t care. I don’t like go-carts in the first place. No one ‘needs’ a go-cart.. and, besides, they can still elect to go with the horse-drawn carriage."
Oh, and here is the kicker… If you do attempt to register the go-cart, and it turns out that there is a 227A back-space carburetor, which was legal to purchase until last year but is now illegal, well, then, you not only implicate yourself in a criminal act violating your Fifth Amendment rights, but you have also essentially given probable cause to allow for a search warrant of your house, implicating your Fourth Amendment rights. Since the attempt at registration was done in your home, on your computer, with your camera taking pictures of the go-cart to send to Sacramento, your Third Amendment rights have also come into play. (That last one was for Cosmo… fight on, Major!!!)
If this seems like a ridiculous reason to prosecute someone, just look at Mr. Kirshenmann’s case. Mr. Kirshenmann is a very successful farmer. He owns property in California, as well as other western states. He legally purchased suppressors in Idaho and brought them back into California. These suppressors are used for varmint control on his properties, and it is highly likely that he did not realize they were not legal in California. He also was in possession of short-barreled rifles… again, perfectly legal in most other states, and perfectly suited for varmint eradication… but, again, illegal in California.
Why do I suspect that he was clueless that he was in possession of illegal items?
He tried to register them as “assault weapons” pursuant to SB 880. He, literally, was trying to comply with a confusing and illogical law and, in the process, sent evidence to CA DOJ that he was committing a crime.
Now DOJ could have easily called him and “instructed” him to move the weapons out of state. It could have even visited him and confiscated the suppressors… and the weapons. But it would be so much more fun to prosecute Mr. Kirshenmann, make him a felon, make it impossible to possess weapons anywhere in the United States for the rest of his life… and, what the hell, put him in jail for a while to boot!
DOJ and the DA decided they needed to make him an example.
The irony is those who were thinking maybe registration would be the way to go, have seen this story and now reasonably are gravitating to featureless or fixed magazine.
Way to go DOJ! Keep reaching for that rainbow.
Rupp v. Becerra
“We needed to destroy the town in order to save it.”
This singular statement made during the Vietnam Conflict did more to alter the course of western civilization than any other. For most of our national history we had a healthy distrust of government, but a general acquiescence to the idea that laws developed by the government and subject to judicial review were facially valid.
That one line, though, “jumped the shark.”
Now people began viewing the military application force in Vietnam as suspect, and with it, the politicians that advocated continued military action. That began a steamrolling effect, culminating in an antagonism to entrenched self-serving political elite, and in many respects, the very political system itself.
Unfortunately, the judiciary has played directly into this. Often times there have been legal cases in which a determined outcome is more important to the court than the legal rationale associated with achieving that outcome. We saw this in Kolbe, where the Fourth Circuit essentially said that the AR-15 is not in “common use,” and thus, not “deserving” of Second Amendment protections.
We have now seen this manifest again in Rupp v. Becerra. In Rupp, Judge Stanton was asked to decide if the registration process for the California Assault Weapons Control Act violated the plaintiffs’ Second Amendment rights, as well as their due process rights, specifically, as it related to the act of registering an “assault weapon.” One of the requirements before registering is that applicants must state (under penalty of perjury) the name, address, and date of acquisition of their firearm in their application to DOJ for registration of their rifle. Many individuals legally own their weapons, but failed to retain their original DROS paperwork, and thus, could not complete the form without guessing as to the date or location of purchase.
Not wanting to overturn a gun control measure that her fellow anti-gun friends in Sacramento advocated, Judge Stanton essentially said, “tough,” and, ironically, set the stage for a method of compliance that is completely at odds with what the legislature intended as it relates to their stated objective. The funny thing about it… (if anything about this could be construed as “funny”)… is that Judge Stanton more likely than not has absolutely no idea that she just encouraged people to take off their “bullet buttons,” and thus enjoy the ability to quickly and more efficiently reload their weapons.
Great job, Judge!
In her decision, Judge Stanton went into great detail to explain that the plaintiffs were not in a position to sue for relief since, essentially, none of them had actually committed perjury yet and attempted to apply.
If that sounds like a ludicrous standard that needs to be met for ripeness, you are correct.
The real interesting part of the analysis, though, is her application of the Second Amendment challenge.
She notes that in Heller, the Second Amendment is to be construed as a core fundamental right.
She then states, “Assuming, without deciding, that individual ownership of semi-automatic weapons implicates a core Second Amendment right, the Court must determine the appropriate level of scrutiny. Every circuit to have encountered statewide bans on semi-automatic weapons designated as assault weapons, has applied intermediate scrutiny.”
Ok… so what is “intermediate scrutiny”?
Well… in her decision she articulates it:
“(1) the government’s stated objective must be significant, substantial, or important; and (2) there must be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” Silvester, 843 F.3d at 821-22 (quoting Chovan, 735 F.3d at 1139). The state need not “show that [the regulation] is the least restrictive means of achieving its interest.” Fyock, 779 F.3d at 1000 (citation omitted). Rather, the state is “required to show only that [the regulation] promotes a ‘substantial government interest that would be achieved less effectively absent the regulation.’”
She then goes on to say that the registration furthers a significant government interest, and that there is, in fact, a reasonable fit between the challenged regulation and the asserted objective.
So… what was the objective?
Simple…. the State does not like detachable magazines.
That was the whole point!
The bullet button was a device that stuck in the craw of the legislature. Legislators did not like the fact that industry had developed a “work around” of the idea of a detachable magazine. SB 880 was written to make the bullet button ineffectual in establishing the rifle as a fixed-magazine rifle. Rather than implicate a “takings” issue, they essentially said that a weapon with a detachable magazine can be registered as an “assault rifle” during a statutorily-defined time period. Alternatively, the owner can affix the magazine in place with a device that requires the action be “cracked” prior to removal of the magazine.
What they forgot was that the definition of an “assault weapon” is a centerfire rifle, with a detachable magazine AND one or more “evil features” (a pistol grip, telescoping stock, etc.).
Many individuals have elected to go featureless… meaning they have removed those “one or more evil features,” effectively opting out of the legislative scheme.
This also means… and here is the kicker… they are allowed to have traditional magazine releases on these rifles!
So, Judge Stanton… by upholding the registration scheme, you have effectively driven thousands of law-abiding gun owners to alter their weapons into featureless weapons and, thus, take advantage of traditional magazine releases.
The exact opposite of what the legislature intended.
Not what you had hoped for, Judge… and frankly, surprising that the DOJ did not realize this inevitable result itself… but there you go.
Well done, your honor.
Typically I go to SHOT Show every year, and Sandy gets to go to the NRA Convention. This year was a little different. It was decided about a month ago that Cosmo, my law partner, and I would go to the convention primarily to take part in the day-long legal seminar that the NRA puts on every year. Sandy, being the rational person that she is, suggested that it might be more efficient for Cosmo and me to go alone this year and spend our time doing lawyerly-like stuff without her worrying about the two of us getting lost or getting into trouble.
So, with cigars packed in our suitcases, Cosmo and I headed out to Texas for what would amount to a day-long continuing education seminar for lawyers, and a brief opportunity to wander the show floor before heading home.
The legal seminar was put on by the NRA’s chief legal counsel, and opened up with a “State of the Second” lecture by famed law professor Michael O’Shea. Those who have read the original Peruta decision (a spectacular treatise authored by Justice O’Scannlain) basically read a chunk of the work of Professor O’Shea.
There was nothing particularly “new” in his assessment, but he did offer some interesting ways of thinking about the jurisprudence of the Second Amendment that, candidly, had never crossed my mind. I am still digesting his law review article… and I can assure you that I will be bringing more of his brilliant legal thoughts to bear on my own analysis of Second Amendment issues.
Next was Cosmo’s favorite, Gerald Goldstein. Mr. Goldstein is one of the partners of Goldstein, Goldstein, Hilley & Orr, and, like Cosmo, is a criminal defense attorney. He is a very funny and articulate attorney and, though he self describes as an “old, Jewish Texas hippie,” he is a fierce protector of the Constitution, and is, interestingly enough, both fascinated and deeply impressed by the Supreme Court’s newest Justice, Justice Gorsech. His musings on the Fourth Amendment were both illuminating and instructive.
These two were followed by several other lawyers and one appellate court judge. We started promptly at 8:00 am, and finished right at 5:30 pm. One highlight was the opportunity to meet with the attorney representing the young plaintiff in the Michigan Dick’s Sporting Goods lawsuit, alleging age discrimination in preventing the plaintiff, who is 19, from purchasing a rifle.
After an excellent dinner, some whiskey and cigars, and what seemed like an all too brief night’s sleep, it was off to the actual convention to see “some stuff."
For those of you who have read my post, “SHOT Show”…. you pretty much are up to speed on the NRA Convention. The moment I walked onto the show floor I felt as though I was in Vegas…. the same vendors, using the same booths, showing the same stuff that was previewed at SHOT this last January. The only major difference was the option to actually buy stuff at the booths.
Cosmo finally got to meet Colin Noir, and take a picture with him. (I am sure that Mr. Noir was as excited as Cosmo was).
The highlight, though, for both of us was meeting with Sheriff Jim Wilson.
For those of you who read a lot of gun porn, especially vintage gun porn, you have undoubtedly read Wilson’s stuff.
I could have honestly spent hours with Jim just listening to him. Those of you who know my proclivity for talking, realize what a statement this is.
Jim is an anachronistic character… a truly gifted writer who evokes the stylistic flourishes of Robert Ruark, a singer with a baritone voice, who is both rich and accessible, a law man… and, most of all, a cowboy.
Sheriff Jim spent most of his life in a small, rural county in Texas, ultimately becoming the sheriff of that county.
Sandy met Jim at Gunsite a couple of months ago, and the two became instant friends. She called me after she had met him; she described Jim, and mentioned that he was a writer.
That was when I realized she was talking about Jim Wilson.
She told Jim that I had read just about everything he had written, and I was jealous that she had the opportunity to meet him.
His response was pure Jim Wilson. “Gosh, Mrs. Lieberman, you tell your husband that I am honored and touched that he appreciates my writing… but I am dubious about his taste.”
When you think of the stereotypical honored cowboy, the quiet man who lives by a code of honor, you are, in reality, thinking of Jim Wilson.
When there are no lady folk around, Jim also has no problem being a little freer with his language.
We were talking about Colonel Jeff Cooper. Jim and Jeff Cooper were close friends. He said that Cooper never, ever used swear words. Cooper, who was a Marine, was also a Stanford graduate. Jim said that Cooper once told him that he refused to use swear words because he had paid a lot for an education, and he did not need to use curse words to express himself.
Jim kind of smiled to himself and said, “That guy was f#@ing amazing.”
So, all in all, the show and the seminar were outstanding…. but as always, it is good to be home!
Police work is an inherently dangerous business.
Intuitively, we all know that, and when one of our community’s finest places his or her own life in jeopardy to protect the innocent, we swell with vicarious pride and admiration that in a world of such selfish preoccupation there are those who are willing to answer the call, even at their own peril.
Rarely, though, do we shift our focus to those who empower heroes to be heroes… their loved ones.
When we first opened our doors, Artemis trained law enforcement. Many times we were asked by our law enforcement clients if we would be willing to provide training to their wives, girlfriends, and, yes… sometimes husbands and boyfriends. More than just general marksmanship instructions, these cops wanted their loved ones to understand the types of pressures they face daily at work.
One time, an LAPD officer and his fiancé came into Artemis together for a private training session. At the conclusion of one of the more intense scenarios, the fiancé turned to her soon-to-be husband and exclaimed, “Okay… I will never again have an argument with you on the phone while you are at work.” She understood the sheer magnitude of the stress that her soon-to-be husband could, at a moment’s notice, be facing, and she did not want to distract him or cloud his judgment when, literally, his life could be on the line.
Enrolled in our last CCW class we had the wife of a law enforcement officer who is currently living with a credible, specific threat to his safety. As a means of protecting his family, he and his wife decided that she should get a concealed carry permit.
Her ability to shoot was already present. Growing up, her family (also cops), had seen to it that, with access to firearms in their home, she would be knowledgeable in their use and safety.
Understanding the stress of a deadly force encounter, or judgmental use-of-force… well, that was another matter.
One of the programs we developed a few years ago was “Date Night." This was the brain child of Sandy, and it was intended as a covert method of getting the “significant others” of cops into Artemis.
Couching a training event in the guise of a “night out,” Sandy orchestrated an evening of bonding and training. The evening begins with a three-course dinner at Artemis, followed by simulator work as couples for about a three-hour training block.
The program has become wildly successful.
Date Night participants still draw from law enforcement families, but now the ranks have grown to include CCW holders and their partners, to general firearms enthusiasts and their dates.
This broad community of participants is critically important for our law enforcement family.
Not only do the civilian clients get to interact socially with our law enforcement clients, but the partners of our law enforcement participants have an instant social connection to other civilians. This has proven an invaluable component to continual training. Spouses and significant others, after Date Night, often begin to work their way back to Artemis for continual training. This continual training is an essential aspect of what we deem our “couples therapy." When each partner becomes committed to training, and both understand the pre-incident stimuli that could trigger a use-of-force event, the confusion and second guessing by the non-trained partner is minimized.
Additionally, and frankly, more importantly in many respects, the officers begin to know that their significant other has the independent means of protecting themselves when they are not around. This “security” is as important to a healthy relationship as is communication.
Typically, once a quarter on a Saturday night we have our Date Night at Artemis. The event is open to 12 couples, and usually sells out. We highly encourage you to suggest, invite, or even deceive, your significant other…(yes… there have been incidents where the partners have thought they were going to simply see a movie)… and come in for our next Date Night!
In the meantime:
When you see cops, thank them for their service…. and understand, they have the same worries that you do, not just for their safety, or even your safety, but for the safety of their own loved ones. Often these worries can intrude on their day-to-day activities.
Victimization is an intensely personal thing.
Those who feel collectively victimized often arouse the ire and subsequent dismissiveness of those who fall outside of the collective. At a fundamental level, we realize that we are all individuals, and thus, individually, we have the capacity to feel victimized.
There are those who have been victimized because of their status… this is absolutely true. Virtually every minority on the planet has been subjected to collective victimization at one point or another. Even members of the established elite are, at times, victimized by their status (the “rich,” the “privileged” and members of law enforcement, for example, have been targeted for their egregious crime of “existing” in our society).
Still, the politics of victimization must take on a very personal aspect before the aggrieved can truly claim aggrieved status. The collectivists dismiss this notion, finding more political value in the whole being persecuted, than the individual. It flows, then, that when the individual is victimized, the whole group becomes the plaintiff.
There is, frankly, some truth to this.
When the monsters on 9/11 sent planes into the World Trade Center and the Pentagon, all of us as Americans were victims of that atrocity. It mattered little if we watched those horrific events from another coast.
The same can often be said of petty crime as well.
This last week a client came to me and sheepishly told me he had been the victim of a kidnapping hoax.
The “Nigerian Scam” plays on the victim's sympathy toward another person in distress.
This scam is designed to scare the crap out of the victim.
Our client was contacted on his cell phone one morning. The call appeared to originate in Mexico, and the individual on the other end spoke in English with a heavy Latino accent. The first words out of his mouth were, “Charles (the client’s actual name), shut up and listen! We have your daughter, Veronica (the real name of the client’s 38-year-old daughter). If you want to see her alive again, you are going to do exactly as I say. Here is your daughter, amigo.” At this point the caller evidently held the phone up to a hysterical woman, with a typical Southern California accent. She was sobbing heavily and stated, “Daddy, help me! They threw me in a van while I was jogging!” The phone then went back to the “kidnapper.”
“If you want to see her alive, you are going to go to the bank and get us some money.”
The call was on speaker phone, so the client’s wife could also hear. She was obviously as distressed as her husband. The husband mouthed, “Call 911,” to the wife, then complying with the kidnapper’s demands kept the kidnapper on the phone as he raced out the door and headed to the bank.
Due to the wife’s 911 call, police were already present at the bank when the client arrived. The police approached the client and, with the “kidnapper” still on speaker phone, let the client know that this was a hoax. The police had already made contact with the daughter at her work, and she was just fine.
Instantly, the kidnapper disconnected the line.
The client felt foolish.
The law enforcement personnel did an outstanding job of comforting him. They let him know that his actions were entirely reasonable based on the extremity of the circumstances. He did nothing wrong. In fact, having his wife call 911 was literally the “right thing” to do.
Fortunately, she was around at the time of the call. Had she not been, and had the police not been notified, he was completely prepared to take all of his money out of his account and wait for further instructions.
What troubled me, though, was something that the detective told the client:
“This is the eighth time we have seen this happen.”
This sick act is an established crime.
I contacted my friends in law enforcement, and sure enough the number is closer to 12. Worse, there is very little they can do. The calls actually originate from overseas, and other than informing the public (one of the reasons for this blog entry), their ability to combat this problem is limited.
One of the things that was explained to me is that this type of crime usually comes subsequent to some sort of data breach. Either company emails are hacked, or databases become compromised. Typically, elderly individuals in zip codes where there is a relatively high net worth are targeted… (though this type of crime can happen to anyone). Details about the victim’s loved ones are data mined, so the call takes on an aura of authenticity.
Criminals have learned a lot about social engineering.
People have very specific behavioral traits; they are identifiable, and, thus, subject to exploitation. The intimacy of the call is critical. Enough detailed information, like the victim’s name, and the name of their loved one, creates an aura of authenticity. Add to that the sense of urgency that is conveyed, “This needs to be done right now, or you will never see your daughter again!”
We might like to gamble in Vegas… but in a situation like this, with even the chance that the caller might be telling the truth, we are literally shocked into compliance.
There is also a structure to the deal.
A contractual obligation.
If you do X, we will do Y.
While we may not trust a criminal, we feel we have very little bargaining power available to us, and we march forward with our eyes focused on the goal, not even considering that there might be an alternative… like having the wife call the daughter herself.
The thought of doing so did not even occur to our client or his wife until the the event was completely over.
There are bad people out there, people who would use the most monstrous of hoaxes to pry a few dollars from a vulnerable segment of our society. While the “Nigerian Princes” might rely on a person’s generosity (or greed)… these scoundrels prey upon our deepest fear: something bad might happen to our loved ones.
Be aware that evil exists in the world…. and stay vigilant.
Camp San Luis Obispo
As a military officer, you become accustomed to certain courtesies and privileges when on base. When a group of JAG officers is given orders to muster at a facility that is 200 miles away for a three-day conference, the event comes with certain… well… expectations.
This was not one of those weekends.
I am writing this blog tonight from my bunk, sitting cross-legged on my rack in the barracks with a bunch of grumbling JAG lawyers all exhausted from a day of “death by power point.”
We were ordered into formation this morning at 0400, and with the exception of three 15-minute breaks for breakfast, lunch, and dinner at the commissary, we went all the way to 2100 before we were marched back to our home away from home.
During the time that we were poring over legal cases involving random Article 15s and, of course, the mandatory sexual harassment training, we were given the passing news that the US bombed Syria.
It would have been nice to find out a little bit more about that…. but, hey… we had no internet, and we were doing some very important Army-type stuff.
Many of you know my law partner, Cosmo… While I am a lowly Captain, Cosmo towers over me as a Major.
He once told me that, “It is the divine right of all military personnel to complain.”
I never really understood that until this weekend.
All joking aside, this conference has proven to be invaluable.
If you are not aware of the truly remarkable JAG lawyers we have in California, you should be.
There have been a few times in my life when I have felt completely and utterly outclassed. My colleagues in my JAG unit honestly represent some of the finest legal minds in all of the United States. The brain power that this unit generates is truly staggering.
With all of these lawyers, let’s throw in a couple of Army Surgeons, two Army Psychologists, and, just to make sure the humor between the ranks stays acceptable, two Chaplains.
All training has some inherent value, and, while the whole is important, there are often nuggets of brilliance that may be overlooked.
One of these nuggets stood out enough for me to decide to write this entry. It has to do with training, and it came from a Chief Warrant Officer.
“Every day is a training day. Some days are emergency days. You can schedule training days…emergency days schedule themselves.”
This really hit home.
We spend a lot of time training. That is by design.
That is also something we can “schedule.”
We know that at 1615 we have a 4M class at Artemis.
I know that at 0745 I need to report to my JAG shop for legal training.
What I don’t know is when the bad guy is suddenly going to show up and try to kill me.
I can’t schedule that.
So I train constantly, I train consistently, and I train with purpose. At the end of the day as I go to bed, I know that I had a successful training day. Every so often I go to bed a survivor… knowing that I either survived, or avoided entirely, a violent encounter. That night I go to bed knowing I had a successful emergency day.
When we don’t have regular training days, we are not, by definition, prepared for the irregularly occurring emergency days.
Come on, i' God's name; once more toward our father's.
Good Lord, how bright and goodly shines the moon!
The moon! The sun; it is not moonlight now.
I say it is the moon that shines so bright.
I know it is the sun that shines so bright.
Now, by my mother's son, and that's myself,
It shall be moon, or star, or what I list,
Or, ere I journey to your father's house.
Go on, and fetch our horses back again.
Evermore cross'd and cross'd; nothing but cross’d!
Reality has imitated art. In Massachusetts, US District Judge William Young issued a ruling last week, in Worman et al. v. Healey, that the AR-15, the “modern musket,” is not a weapon that is protected by the Second Amendment.
Interestingly, he based a large part of his ruling on Heller v. District of Columbia.
This is where things get interesting. In his ruling he states:
“More specifically, Justice Scalia explained, ‘weapons that are most useful in military service — M-16 rifles and the like —‘ are not protected under the Second Amendment and ‘may be banned.’” (Civil Action No. 1:17-10107-WGY)
(For those of you following along at home, this is where Judge Young tells us that the sun is, in fact, the moon.)
We scratch our heads and read Heller, where Scalia actually states:
“This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia.’)” (Heller v. District of Columbia 554 U. S. ____ (2008)
So… how did we get from “Only arms that have some reasonable relationship to the preservation and efficiency of a well-regulated militia” to “Weapons that are most useful in military service are not protected by the Second Amendment”?
They make it up.
We have been amused at the tortured logic that the anti-gun courts have used to justify prohibitions on firearms and firearms use. From the Fourth Circuit, in Kolbe v. Hogan, suggesting that the AR-15, the most ubiquitous rifle in America, was not in “common use,” to the proposal of “intermediate scrutiny” as a balancing test for laws that affect the Second Amendment.
When a fundamental right is potentially affected by a law, the “test” to determine whether that right is volitive of the Constitution is called a strict scrutiny analysis. Essentially, there must be a “compelling state interest,” and there must be no “less restrictive alternatives.” If the right being affected is not a “fundamental right,” then the State must only show a “legitimate state interest,” and the law must have a “rational basis” in achieving that interest… Anti-gun Appellate Courts, knowing that virtually nothing survives a strict scrutiny analysis, but being completely aware that a fundamental right should require strict scrutiny, came up with… on their own… a brand new “intermediate level of review”… cause, hey… why not?! Appellate Courts have elected to test the suspect law by seeing if “there is an important government interest, and the law is substantially related to achieving that interest.”
But hey, why stop there?
If the test does not get you the results you were looking for, then bypass the test completely and just completely rewrite the controlling case law!
That is what Judge Young did.
Stare decisis. Who needs stare decisis? We can use Makis it Upis!
We have a “well-regulated” legal system (to quote the Framers), and that legal system is predicated on predictable outcomes. When the outcome of a controversy…especially a controversy that is based on a fundamental right…is exclusively based on the political whims of a jurist, the social underpinnings of our legal system are shaken to their core. Without reliance that Madam Justice is blind, our society fails.
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