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Negative training scars
The following events took place in our lab during one of our CCW Classes:
When we take our CCW students into the lab we begin with their own pistols that they are preparing to qualify with at the range. We do a safety check to ensure that there is no ammunition present, then we have the students run a few dry fire drills using our digital targets as reference points to aim at.
“Ok shooters. On the command of ‘gun’ you will do a five count presentation onto your target. All we are doing is practicing that five count presentation and making sure it is right. Don’t go ahead of me… I’ll call out each step and move you along.”
“Gun! ...Ok shooters… begin at count one, move to count two make sure that your gun has cleared the holster, count three… drop your elbow and get the gun oriented down range, make sure there is a 10 degree cant to the gun to clear your clothing… four… move your hands together and get a good grip… five come out on target.”
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What? was that the sound of a trigger being pressed on an empty chamber?
“I did not give the command to engage the targets… we are only practicing the five count presentation. No one should have made the decision to shoot, so all fingers should be off the trigger and outside the trigger guard.”
I noticed a bit of a commotion taking place between one of the students and another instructor on the line.
I decided to head over.
As I approached I heard the student talking:
"I Know I pressed the trigger… I do that because of my laser bullet”
Hmmm… this is going to be interesting.
“Whats up?” I asked raising my coffee cup to my mouth.
“I was getting chastised because I pressed the trigger… I do that each time. I have this laser bullet and I use it.”
“Ok… your going to have to help me on that one… you have a laser bullet?”
“Well… no.. its a.. its a thing you put in the chamber, when the firing pin hits it it sends out a red laser.”
“Oh… got it.”
“I do that each time to make sure that my grip is proper.”
“Yeah…. that is a problem.”
“Why?!? I think it is a good thing. If I’m coming out of the holster it is because I’m going to shoot. I’m not coming out of the holster because I’m going to wave my gun around. Besides… I’m using it just to check my grip.”
“Ok.. first off, there is no guarantee that every time you come out of the holster you are going to shoot. In fact, I would hope that each time you put your gun away at night you do a five count presentation to take it out of the holster. Your neighbors might get upset if each time you put your gun away at night you launch off a round.”
“Well… of course. I’m not going to do that.”
“You might…. You are training yourself to develop a muscle memory pattern that involves a trigger press with each draw. You may very well do that when you are not intending to actually fire.”
“Nonsense… I just use it to check my grip.”
The next day we were at the range for our live fire qualification. When we do this each of us instructors stand behind a student to make sure that they are performing their actions properly and staying safe. Like in the lab, the first “round” is a dry fire exercise.
Since this student was “mine” on the line I leaned in and told him, “Don’t put your finger on the trigger as you come out of the holster.”
The live range exercise always makes students a little bit more nervous so he was already a little amped.
He nodded, understanding my range command.
He drew his firearm, and as I suspected his finger went to the trigger and began a press.
He looked at his hands and became visibly shaken.
“Oh my God… I can’t believe I just did that!”
“I can… you’ve trained yourself to do that, and right now you are under a little bit of stress. When we are under stress you default to the muscle memory that you have burned into your psyche during training. You’ve literally trained yourself to do that.”
“But if we were loaded right now, not doing dry fire I would have sent a round down range!”
“Yes… or into a dresser, or drywall, or desk.”
“Some draws do require a trigger press.. but not all. If you train that they all do then you will do it each and every time.”
“Point taken counselor… I’ll start using something else to check my grip.”
Late last weekend the LA City Council made a bold move.
They announced a city wide ban of vehicles capable of reaching speeds over 10 miles an hour.
State law mandates that all vehicles must not be driven in excess of 55 miles per hour… far less in specific areas where excessive speed might result in injury or death to the driver or to innocent bystanders.
Effective immediately vehicles that are capable of traveling more then 10 miles an hour will be confiscated, and the owner cited with a misdemeanor possession charge.
LA follows the city of Sunnyvale in seeking to protect it’s residents from the dangers of vehicles equipped with excessive speed.
In 2008 the City Council of Sunnyvale discovered a loophole in the California Motor Vehicle Code. While State law prohibits the operation of a vehicle above 55 miles an hour, manufacturers are not prohibited from selling vehicles capable of reaching speeds far in excess of the speed limit.
Sunnyvale, seeking to protect its citizens from those that are not properly trained, or the mentally ill, sought to create a balanced approach in protecting the desires of those that felt they needed to own vehicles, with those that wanted to be protected from those that would use their vehicles in a reckless or malicious fashion.
Their solution was a progressive law that would still recognize legal vehicle ownership, while at the same time protecting the population at large by limiting the speed available to 10 miles an hour.
As was expected special interest groups, led by “Big Auto” sued. The case made its way to the 9th Circuit Court of Appeals in the case of Leadfoot v. City of Sunnyvale.
The 9th Circuit sided with the city council.
They found that while the Constitution does confer a fundamental right to free travel, it does not grant a specific right to automobile ownership. More specifically, there is no inherent right to a vehicle capable of excessive speed.
With the law settled, the LA city council decided to take action.
Anyone found in the city of Los Angeles with a vehicle capable of achieving speeds in excess of 10 miles per hour will have their vehicle confiscated and will face of fine of $1000 and no more than one year in jail.
This is not just a law for LA residents. It applies to anyone found in the City of Los Angeles with a vehicle capable of excessive speed.
Councilwoman Cindy Crow-Lipshitz stated, “We have an epidemic, not just in the city of angels, but across this country. Last year over 32,000 people died as a direct result of vehicle speed. No one needs to go fast, and often times these dangerous death traps find their way into the hands of criminals and the unstable. Others are just simply not trained enough to use them properly. With this new law we finally take a common sense step in protecting our streets and keeping our children safe.”
Predictably, car owners responded to the laws passage with indignation.
One car owner who wished to have his name withheld, responded “Who the hell do they think they are? It’s not the car that’s the problem, it’s the person behind the wheel. I drive my car responsibly and have never had an accident… heck I’ve never even had a speeding ticket, why should I have my car taken from me and be forced into a vehicle that I don’t want?”
It would appear that the feelings of the car owner do not reflect the feelings of a majority of voters though. Most of the people polled while waiting for city busses responded that they thought this was a good idea.
One passenger, Jordan Thomas stated, “It’s about time. I have never understood what those car nuts were arguing for. I have never had the need for a car. I frankly prefer to leave driving to the professionals like bus drivers and taxi cab drivers. I just don’t feel comfortable driving, and when I see someone driving a muscle car or something like that it makes me nervous.”
The new law does specifically exempt both on duty and off duty law enforcement personnel.
it is not clear if the new law will be copied by other city councils.
“Shall we expect some transatlantic military giant to step the ocean and crush us at a blow? Never! All the armies of Europe, Asia, and Africa combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years. At what point then is the approach of danger to be expected? I answer. If it ever reach us it must spring up amongst us; it cannot come from abroad. If destruction be our lot we must ourselves be its author and finisher. As a nation of freemen we must live through all time or die by suicide.”
- Abraham Lincoln
These words were excerpted from his Lyceum Address (a speech given to the Young Men’s Lyceum of Springfield Illinois, January 27th 1838) almost 22 years before the start of the Civil War.
It is also incidentally a seminal part of the audio animatronic Lincoln at Disneyland's Great Moments with Mr. Lincoln attraction.
When I worked at the park, at least once a month I would make my way over to the Lincoln theater to listen to Disney’s unique, and frankly somewhat weird take on Abraham Lincoln. His “speech” to the guests is not really a singular speech, but rather an amalgamation of about twelve of his famous works. Taken as one work they form no linear progression of thought… which is unfortunate.
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They did include the portion above from the Lyceum Address… and apart from the Gettysburg Address this is perhaps one of my favorite intellectual arguments from President Lincoln.
It is also transcendent.
When he wrote those words he was chiefly concerned with slavery, and how nullification of the laws could ultimately bring down the American Experiment.
His words are as true now as they were back in 1838. Ironically, slavery is still the issue.
The other week we saw an Islamic Radical attack a military recruiting station in Chattanooga Tennessee.
This was not the first time an event like this has happened. The fact that our soldiers and sailors stationed inside are forcibly disarmed by policy is a tremendous insult to their honor and sacrifice.
When the public saw the images of a shot out window with the asinine picture of a “gun free zone” sticker still emblazoned on the fractured pane of glass cries of foul arose.
Within a couple of days multiple states governors declared that their state guards could carry firearms, and there seems to be momentum for the pentagon to change their position on this as well.
Citizen patriots appalled at the fact that these recruiters are literally sitting ducks took up arms and began to stand post in front of these stations.
Are these self mobilized citizens as trained as the soldiers they protect?
Are they as competent as the police who would ultimately respond to a threat?
Difficult to tell.
Is there presence there largely symbolic?
Hell yes… and symbolism has power too.
Still there are the naysayers. Those that disparage the citizen standing post are the same ones that argue for a continued gun free zone.
The idea of individuals forming a collective unit outside the controls of the government is terrifying for them.
The fact that these same individuals have the power of a firearm at their disposal enhances their apparent power, and challenges the power of their protectors.
In Taiwan there was a Buddhist group efficiently mobilized their members to provide disaster relief to thousands that were effected by an earthquake on the island. By the time that government aid arrived the government workers were greeted by the sight of the Buddhist group already 3/4ths of the way completed with their relief operation. The constituents of the government were more enthralled with the Buddhist volunteers than the bureaucrats from Taipei.
As you can imagine the government sought to shut down the Buddhists.
Bureaucrats and statists hate the idea that an individual could potential thrive without their “critical” assistance.
This is directly opposite of the idea that our Framers granted to us.
We control our destiny.
We are our masters
We, when mobilized can repel any army, navy, or asymmetrical soldier from Japanese Imperial Fleet to a delusional thug from Isis.
No… our fear should not be of them.
Our fear should be of those among us that seek to make it easier for our nations enemies to attack without prejudice our greatest national treasure… our people
President Lincoln was right…. “If destruction be our lot we must ourselves be its author, and its finisher.”
A monopoly on violence.
The other day I was musing with some students that the State has always sought a monopoly on violence.
There are times in history where the protectiveness of this monopoly has reached such an extreme level that an innocent person, repelling the assault of an attacker with deadly force has faced a capital punishment by the authorities for intruding on the States monopoly.
In feudal Japan the State had a 100% monopoly on violence, vesting the power to use deadly force in the hands of a select few…. usually the Samurai.
In Modern day Europe we have seen examples of the State using brutal force to protect its monopoly. While modern sensibilities have prevented the State from using capital punishment as a penalty for the protective use of deadly force … they have effectively used draconian incarnation penalties as a means of dissuading its citizens from protecting themselves.
The Subjects of the United Kingdom have suffered perhaps the most absurd prohibitions. Right now there are otherwise “innocent” individuals that are behind bars for defending themselves, while their attackers have served their sentences and have been released back into society.
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While we Americans read these stories with disgust it is to be frank, intellectually honest on the part of our European cousins. To them the highest form of crime is not against the individual… it is the crime of the individual against the State that has reserved for it the strictest of punishments.
When I hear our friends and clients shake their head and exclaim that modern day progressives are “turning us into Europe!” I must offer this:
They may try… but they will ultimately fail… and they will fail not because of lack of desire… they will fail because of philosophy
Ours is a country based on two crucial premises: We are sovereign individuals who willingly cede a small portion of our sovereignty to the State only for as long as the State helps to develop an efficient platform for us to co-operate, and… more importantly: The State has only a limited role in our lives…and that the Rights we enjoy are granted to us by our Creator and only recognized (as opposed to granted) by our government.
Earlier I referred to the “Subjects of the United Kingdom”… this was not a casual use of the word. I replaced Citizens with Subjects because it frankly is a more philosophically correct.
We are Citizens in the United States. The power of the Government comes from us, and we retain the right to revoke its charter. The monopoly on violence that has been so jealously guarded by States throughout human history, was deliberately reserved to the people in our founding document. The Framers recognized that were the State to assert a monopoly on violence over the People… the People would have little means available to stand up against Tyranny.
Understand… Tyranny comes in many forms. While some scoff at the idea that a lone patriot with an AR-15 could overthrow a tyrannical government… their course of argument shows a lack of understanding on the nature of Tyranny.
Yes… we may have a Caesar that rises to power and must be dealt with by an army of patriots…. but so too might there be the local Caesar…weather a minor magistrate, or a criminal who uses violence to demand submission from his victims.
The Second Amendment recognized that the State must never have a monopoly on violence. Citizens give power to the government, and by the very nature of being sovereign have the ability to change or alter their affairs when necessary. If the State seeks to use tyranny as a means of stifling the body politic the people must have the tools at their disposal to thwart the advances of the State.
If the thug seeks to use tyranny to stifle the life of the Citizen, and the State is powerless to protect the citizen be it from lack of resources, or corruption, the Citizen has the power to protect himself in the absence of the State… not in spite of it.
We Citizens recognize.. (or should recognize) that we are free….and while “freedom” has become ensnarled in byzantine labyrinth of regulations and prohibitions we still offer ourselves up to the world as a “free people”.
As a free people we are by definition citizens.
In a world where the State has prohibited you the very basic right to defend yourself against tyranny the philosophical underpinnings become suspect…. For in that world I cannot legitimately call myself a citizen… In that world power emanates from the State, not from the People.
In that world I am a Subject.
“You keep a round in the chamber?!?”
“Even for home defense? I mean… for home defense, you would not keep a round in the chamber right? You want the extra time in case you decide you don’t want to shoot. Having to rack the slide gives you that extra time.”
“No… I keep a round in the chamber for my home defense guns too.”
“Really?!?! isn’t that dangerous?”
“Tell me… what are rules number 1 and 3”
“Ugh…All guns are always loaded, and keep your finger off the trigger unless your sights are on target and you’ve made the decision to shoot.”
“So… how does not keeping a round in the chamber allow you to do things you otherwise would not do.”
“I guess it doesn’t… it’s just… really?? you keep a round in the chamber?”
This little dialectic took place during our last CCW classes. One of our clients, was trying to wrap his head around the idea that carrying with a round in the chamber… actually having a round in the chamber at all,… was a good idea.
During the academic component of the class on Saturday I did my best to convince him of the logical consistency of keeping a round in the chamber. In gun wonk talk we call this “Condition 1”… sometimes called “Cocked and Locked”…cause… well… it kinda sounds cooler.
The conditions are listed below: They were developed by the late Col. Jeff Cooper for use in describing the condition of the 1911 pistol… to a greater or lesser degree they can be adapted for use with any semi automatic pistol.
Condition 0 : Round in the chamber, hammer cocked, safety off
Condition 1 : Round in the chamber, hammer cocked, safety on
Condition 2 : Round in the chamber, hammer down
Condition 3: Chamber empty, hammer down, loaded magazine in the gun…
(This is the way they carry in the movies, so that the hero has to dramatically rack the slide before going into action.)
Condition 4: Chamber empty, hammer down, empty or no magazine in the gun… this is what you call a paper weight.
Our client was convinced the only “Safe” way to carry would be in condition 3. This makes sense.. it was in line with a whole bunch of movies he had seen. It is also… and this is a truly unfortunate reality… in line with the course of arguments from many county prosecutors that have sought to levy criminal charges against gun owners that have used their firearms in defense of their lives.
“Not only did the defendant have a gun near him… he had a round loaded in the chamber!!!”
(hmmm… maybe that is a direct result of the extensive training that the defendant has undergone. Training that is in line with the protocols that the bailiffs in the court room also have undergone… in fact counselor, can we ask the bailiff if he currently has a round in the chamber?”)
So… the next day we headed out to the live fire range for the students to qualify on their guns. Frank.. our condition 3 specialist had his Beretta all ready to go.
During the third string of fire I watched as he got flummoxed attempting to do a speed load. His empty mag came out, but he used his thumb to release the slide stop before seating the next magazine.
Yeah… it was ugly…but but opportunity to prove a point!!!
“Frank… You have a loaded magazine in your firearm, but you don’t have a round in the chamber”
He went to rack the slide.
“No… wait… go ahead and return your gun to the holster in it’s current condition.”
Once Frank was situated and the line was clear I leaned in to talk to him. “Ok Frank, here is the deal.. you have a firearm on you with a loaded magazine, but no round in the chamber.”
He nodded his head listening to me, and looking at this target 5 yards away.
“Kavon is going to call “gun” for all you guys in a couple of seconds. When he does you are going to need to draw your firearm, rack the slide, get a round into the chamber and get two shots on target.”
“Frank,… if any of your classmates get shots off on their targets first, before you get your shots off I want you to take that as you were hit.”
“You did your best to convince me that it was a good idea to carry with an empty chamber yesterday… here is your chance to prove it. Get a round into the chamber and stop the threat.”
Needless to say, by the time that Frank had come out of the holster, racked the slide, and gotten shots on target, most of the other students were already done shooting and doing their tac-loads.
As he slowly returned to the holster he glanced over to me.
The attack cycle
There is an arrogance. An arrogance that presupposes omniscient perceptions.
We are warriors... Magnificent legion that make demons tremble upon our arrival!
We are also usually moral creatures that live within societal constructs. One of those constructs... a really really important one: You may only use deadly force when someones actions create a reasonable belief that there is an imminent likelihood of death or great bodily injury.
Even though we know.... we just know ... that the guy staring at us at the bar is going to attack us in the parking lot as we walk out to our cars... we are not allowed to attack him first, even though we may have a strategic advantage right at that very moment.
One of my all time heroes, St. Thomas Aquinas developed this legal philosophy in his great work the Summa Theologica (In his theological opus magnum, there is a “book within a book” called De Legibus... literally “of the laws”).
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There he argues that each individual must be granted every opportunity to find salvation.... right up to the end. If we were to defend ourselves with terminal force, before bad guy launches his attack, we are essentially robbing him of the opportunity to act righteously... essentially everyone gets the opportunity... right up to the edge of the ditch to decide that he would rather accept a righteous life, than continue on with his evil ways.
Once he has committed to his vile act through an outward instigation of hostilities... well then you can dump him.
While this blending of cosmology and legal ethics is quite elegant, it kinda puts us behind the eight ball when it comes to defending ourselves. After all... this codifies that the bad guy gets the first bite at the apple.
Case and point: The body cam video of the officer involved shooting at the top of this page.
Our officers are sent to question an individual allegedly involved in shop lifting. They find him holding up in the restroom of an Applebes. While this case involves the positive actions of law enforcement, the circumstances can also be analyzed through the lens of the vigilant civilian.
(Just a point of clarification: I use the term positive in reference to the actions of the police. This is not a judgment call, rather a means of describing their actions as positively engaging a potential hostile, as opposed to defensively looking to create as much distance as possible between themselves at the suspect)
The first thing that strikes us is the relative calm demeanor of the suspect. He appears well... normal. He looks slightly intimidated and embarrassed... sort of the way a normal person would think they would act placed in similar circumstances.
This is potentially very very dangerous.
While empathy may have positive social value it can also lower our guard. “This guy is acting just the way I would act if I were in his position. Since I am non-violent, and I can relate to him I will draw the logical conclusion that he must be non-violent”
This is exactly the type of unilateral disarmament the bad guy is hoping for.
Unfortunately for him, and the video proves this out, both officers had the presence of mind to not focus on the suspects’ apparent benevolence, instead they focused on his hands.
When the suspect pulled a gun... (or what appeared to be a functional firearm).. the officers went into full scale defensive mode.
The taping officers partner immediately threw the suspect to the ground, (an off balance suspect is less likely to shoot you than a stable one). Then while the suspect was in motion both officers drew their firearms and began shooting.
They also continued shooting until they were convinced that the threat was no longer a viable threat.
Someone is going to stop engaging in a deadly assault for one of two reasons. 1) They psychologically have agreed to stop being a threat, or 2)they physically have been made incapable from continuing their threatening actions.
Here our suspect has not shown any outward signs that he has psychologically stopped. It is therefore incumbent on the part of the officers to ensure that he has been physically stopped.
Had they relied on his demeanor, his apparent good-naturedness, this encounter may very well have had a disastrous conclusion for the officers and that of their loved ones.
Remember... the best way to avoid a gunfight is to be ready for a gunfight.
July the 4th
“... We hold these truths to be self-evident... that all men are created equal, that they endowed by their Creator with certain inalienable 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, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Such powerful words.
A radical idea that first became a part of our burgeoning national consciousness on July 4th 1776.
The Declaration of Independence was not, nor should it be, remembered as a "memorandum of understanding" as to why the colonies sought to break away from England.
Rather the Declaration of Independence should be interpreted more on a personal... an individual... level.
This document.... this perfect, elegant document... lays out the foundation as to what makes each of us essentially... human.
The Declaration is a personal statement that lays out one of the most dynamic, and revolutionary concepts: The fundamental dignity and freedom of the individual.
There had been philosophers that had argued that individuals are “free” creatures. Some saw this as a good thing (John Locke)... others... (Hobbes)... well, not so much.
Still, the Declaration of Independence set in motion a philosophical idea whose time had come : A government should be based not on the hopes of living underneath a benevolent dictator... but rather on the understanding that the government itself served at the pleasure of the governed.
Think of it... The Declaration essentially says that we are all independent sovereign units. We willingly relinquish a small part of our sovereignty for the sake of societal efficiency. Yet that tiny portion is decidedly ...well... limited.
Some things we cannot relinquish even if we wanted to: Life, Liberty, and the Pursuit of Happiness. Nor is this an exhaustive list... “among these are Life, Liberty and the Pursuit of Happiness”
There are other inalienable rights as well.. they were simply not mentioned in the Declaration,... but their presence must be acknowledged.
It also speaks to the inherently transient nature of political structures. Governments may come and go, but the rights of The People remain constant.
Think of the power that has now been recognized in as emanating, not from the Divine Right of a King... nor from the brutality of the War Lord... rather from the Grace of the Creator made manifest in the hearts of all. This raw power... this inalienable individualism is at the heart of our aversion to collectivism. Earlier, I mentioned that a tiny part of our individual power was transferred to a central government for the purposes of efficiency.... there is also an escape clause.
The moment that a government.. a political construct that serves at the power of the people seeks to expand it's power beyond, the limited powers granted to it by the body politic, the legitimacy of that government instantly fails. In fact, even the power behind the government evaporates.... returning to the original source: The People. You see... when a revolution takes place, it is not a toppling of the existing power structures.... the moment they sought to extend their control beyond their limited functions, the power that had been granted to them transferred back to their rightful owners... The People to whom the defunct government now seeks to control. It is not that the tyrant has been overthrown by the people... in a sense, the tyrant has been overthrown the minute he chose to become a tyrant.
This political philosophy outlined in the Declaration changed a fundamental understanding of the nature of power and the source of power. It also presupposes that power is not abrogated by national boundaries.
Our rights are granted to us by our Creator. Rights that were bestowed on each human upon their arrival into our world. The fact that one might live in Nevada, and another may live in the Netherlands is immaterial to the concept of universal freedom.
We have always had disagreements on how we should govern ourselves, and the limits of government... this will always continue... as our Framers envisioned it would.
Still the document that set this philosophical underpinnings of our understanding on the limits and purpose of government, became part of our national heritage on July the 4th 1776.
After finishing up with a CCW class this weekend I got home fairly late. Chaney was doing a training excise with her Sheriff Explorers and Sandy was falling asleep in front of the TV.
Seemed like as good a time as any to read my emails.
The first one I see is from a client who went fishing in Dana Point harbor last evening. He fishes in a float tube... (think inner tube with water tight pants. Instead of shoes you have flippers that allow you to propel through the water.) He was issued his CCW permit a while back and had what could have potentially been a violent encounter last night, and was curious about legal implications.
He was attacked by a Sea Lion.
Well... actually nibbled by a sea lion pup is probably more descriptive, but does not sound quite as cool.
While this playfulness sounds cute these are wild animals. In fact, biologically they are pretty much the equivalent of bears.... and while bears are as cute as sea lions we all know they can potentially be deadly.
When I was diving I had the opportunity to dive with a sea lion harem off of San Nicolas Island. It was all cute and adorable until the alpha male showed up. At a depth of 50 feet he snarled at me and my blood ran cold.
The teeth on a sea lion can easily rip flesh from bone, and while they “look cute” they are more than prepared to act as what they are: wild animals.
So while are student was amused by this playful sea lion pup, it dawned on him that this adorable encounter could easily turn deadly.
His question: could he have used deadly force if he felt threatened.
The answer is an unequivocal yes.
There are all sorts of regulations regarding the hunting of game, and the Marine Mammal Protection Act specifically prohibits the harassment or hunting of marine mammals (except in very specific circumstances usually regulated for aboriginal substance hunting).
But there is a broader picture: The use of deadly force... specifically the use of a concealed carry firearm for the protection against a wild animal.
The general rule should be obvious: You can’t shoot an animal unless you are in a specific geographic area that allows for hunting, you have a proper current hunting license and a tag (for the taking of the specific game you are hunting for)... and it is in season. (For non-game animals, such as varmints there is no tag, nor is there a specific season).
For the purposes of this discussion we will assume you are not hunting game... rather defending yourself from an imminent threat from an animal. (Note the use of the word “animal” and not wild animal... the fact that the attacking animal might be domestic is irrelevant to the equation).
Your use of your firearm to defend yourself against the offending beast is on its face a violation of law... however, your affirmative defense to this violation of law is one of necessity.
Remember: you are allowed the use of deadly force when it is reasonable to believe that there is an imminent likelihood of death or great bodily injury.
A bear, a pack of coyotes, a mountain lion, a rabid dog, or even an amorous sea lion might very well create such a reasonable threat.
There are hunters that hunt with pistols... though those pistols are very different from the firearms typically carried for defensive purposes. Still... the purpose of the CCW is not to hunt... rather it is to defend. If a threat has manifested on two legs, or four and the use of deadly force is necessary to stop that threat you will be deemed to have acted reasonably by dispatching the creature with you concealed carry weapon.
Be advised though... the question is going to turn on “reasonableness” and therein lies the rub. What might be reasonable to you... especially in the throws of the encounter might not be deemed reasonable by others. A bear or mountain lion attacking you... most can empathize with the fear you are under and will more than likely deem your actions justifiable...
Well.. yeah I guess... it’s just that... well... you know... there cute! And what are you doing playing around in the water anyway? Couldn’t you have just,... you know... splashed water on it and made it go away?
Yeah... this logic might be what stands between you and a court date and prosecutorial discretion.
Now the real question: If you are hunting and you see an endangered animal eating an endangered plant.... what do you do?
Peruta v. San Diego : En Banc Review
Well that was interesting.
I have returned to my hotel room in Downtown San Francisco and just got through reviewing my notes from the hearing.
(I also enjoyed a whiskey neat, at the sky lounge at the Marriott Marquis while eating dinner and ruminating on todays proceedings, so if my writing is unusually verbose blame the alcohol.)
Don’t worry fellow CCW holders I was not carrying in the bar... though as I have mentioned before, there is something uniquely satisfying about carrying while in the confines of San Francisco.
Ok... here is my frank assessment: The hearing went well... actually better than I expected, and surprisingly better than I think a lot in our firearms community expected.
Here is my disclaimer: It is virtually impossible to determine the outcome of a case from the oral arguments. These are interesting, and maybe shed some light, but in the end there are so many other factors... both political as well as procedural, that go into a decision, it becomes worthless to gauge the opinion of the court through questioning... or my favorite... the analysis of body language.
A lot of people seem intent on analyzing how each justice is studying the counsel at the podium.... get off that train, it does not go anywhere... some of the justices just enjoy the intellectual back and forth, and while they are disappointed (and show it) sometimes with the attorneys' answers, it has very little dispositive weight on how they will decide.
A couple of things did strike me though:
Clement and Gura attorneys for Peruta and Richards (Richards was an identical case in Yolo County that was combined with Peruta) did an over all good job.
I was a little disappointed that Clement seemed to suggest that “good cause” was not in and of itself violative of the Second Amendment.... but that is just me being a meat eater.
The fact is... the case that the three judge panel handed down did not strike the good cause requirement... it simply said that “general interest in self defense” was to be given judicial notice as being sufficient good cause.
Gura was a little more aggressive in following contrarian justices onto the intellectual tree branch. When asked if the state had any right to restrict the Second Amendment he opined that if we allow sheriffs to restrict the Second, why not allow them to restrict the Fourth? After all... a sheriff would be a lot more effective in getting bad guys by only allowing some people to petition the sheriff for a license to exercise their Fourth Amendment rights.
He also invoked abortion...
Yeah you read that right...
In an Arizona case the 9th said that a sheriff cannot create impediments to someones ability to exercise a fundamental right.
Well... if you have ever poked around the Constitution looking for the amendment or article where it talks about abortion you won’t find it. It is located in the “penumbras” (whatever the hell that means), as articulated by the Supremes in Roe v. Wade.
Gura argued... if the 9th could restrict a sheriff from infringing on someones fundamental "penumbras", surely they could restrict a sheriff from infringing on a more.. shall we say “articulated” right.
My favorite quote though came during a discussion regarding open carry vs. concealed carry.
One of the justices seemed interested in exploring the dynamics of “California Open Carry”.
I put that in quotes because up until it became illegal through legislation, open carry in California was relegated to unloaded open carry. Yeah... you got it... you were allowed to carry... but it had to be unloaded.
Gura suggested that this type of open carry was essentially worthless. The Justice shot back "Well.. in Jackson we just stated that keeping your gun locked up and your ammo separate from it was constitutional!"
This line of discussion, while interesting, really took the litigants down an intellectual rabbit hole since we now effectively have a ban on open carry.. and in most urban centers a ban on concealed carry. Gura offered a gem though; “No one in America has ever carried an unloaded weapon for self defense”.
When it came time for the State, and Yolo counties to jump in, things got...well...weird.
Frankly I was expecting the court not to question them too hard.... I was wrong... they got grilled.
The State started off by arguing why the Justice Dept. should step in and argue this case, since the San Diego Sheriff has given up on it. The court did not seem pleased that the State was coming in this late in the game, and the precedent it might have in other areas of law... but here was the bizzare part: The state articulated that the beauty of the CCW scheme in California is that the individual sheriffs get to decide what “good cause” is. The State has devolved that power to the local level. So the question remains... if the State has granted that power to the sheriffs, how does the state have a vested interest in this case? A couple of the justices seemed really perplexed by that... and it will be interesting to see how this plays out in the decision...
But the State did give us a big whopper of one though.. when asked if the State believes the 2nd Amendment grants an individual to “Bear Arms “ outside the home the Counsel from the Dept. of Justice hemmed and hawed and then said “yes.”
That is a biggie.. and may have deeper implications.
The attorney for Yolo county finally took us into the Twilight Zone.
In his world this whole concealed carry thing is much ado about nothing. Yolo county is 99% rural where you can open carry to your hearts content (wrong), wear a gun into any business where the owner allows you to be armed (wrong), it is just in the tiny little urban center where they have restricted the carrying of firearms.
In the rebuttal Gura slammed this ascertain. The justices also appeared equally unmoved by Yolo’s argument.
What was interesting though is that Yolo also agreed that the Heller decision (The Supreme Court case that FINALLY recognized the Second Amendment as a fundamental right) did not restrict that right to the home.
Yolo also perpetuated an annoying fiction saying that the Second Amendment was a fundamental right to HUNT!!! and hey... we restrict hunting in cities and urban places so what is wrong with restricting carrying of firearms in urban places?
A couple of points I would have like to have seen brought up but weren’t:
1) Heller does not allow for an intermediate review of the Second Amendment right only Strict Scrutiny... Justice Thomas in his dissent at not hearing Jackson v. San Francisco stated this... why with all this does the court still believe that intermediate scrutiny is still in play?
2) Equal protection. The sheriff might have the discretion on who gets and who does not get a ccw in their jurisdiction, but they don’t control who works and visits their jurisdiction. A ccw granted in one part of California is valid throughout the state. How is it fair that a citizen of Orange County can have a CCW and work in San Diego, but a citizen of San Diego who works in the cubicle next to the Orange County co-worker cannot?
Anyhow... it is done... we will see what happens when the court renders it’s decision in hopefully a couple of months. My hope is that we actually get a decision and not a remand to the lower court to retry the case.
Time will tell.
“Don’t you think that reasonable restrictions are necessary when it comes to guns?”
“Can I be the one to draft the “reasonable” restrictions and leave you out of the process?”
“Well that would not be fair”
“Because its obvious where you stand on this... you would not enact any serious reforms.”
“Hmmm.. good point... tell you what... in your universe guns are bad and need to be regulated from a health and safety standpoint right?”
“Hey... I never said all guns are bad... but seriously... do you really need one of those AR-15 things? Those are weapons of war and....”
“Sorry to cut you off, but you’re about to start monologuing. You want to ban most guns right?”
“Well,... Yes I don’t know why anyone really needs them”
“Believe it or not I might be willing to agree with you.”
“But we have to agree on some things first. Ok?”
(If you have arrived here from our newsletter, continue reading here:)
“Agree on what exactly?”
“Well first of all, we have to be willing to ignore a Supreme Court ruling that FINALLY recognized the Second Amendment as a fundamental right... the same type of right like free speech, religion, and equal protection.”
“Well for your information, I think the Supreme Court got that one wrong... you know they’ve gotten other cases wrong before: Dred Scott, Plessy v Ferguson.”
“Yeah.. those were doozies!... but stay with me for a sec... Like I said I might be willing to “ban guns”.. well.. regulate who can own them, but we have to be consistent.”
“Here it comes”
“Yep... I also think we need to regulate speech, and religion... after all more and more people are claiming to be either atheists or agnostics why do we need to protect an antiquated concept of cosmology? I’m also not comfortable with that whole equal protection thing.”
“You don’t think everyone should be treated equally?”
“Why should I? You don’t... you are more than willing to create special laws that apply only to those that wish to exercise one of their basic fundamental rights... but I digress... we are talking about your new utopia that you and I are going to build together.”
“It’s not a utopia! I just don’t think people should have guns... well except for military and police!”
“Calm down... I’m not going to knock you off your unicorn... you and I want the same thing! I don’t want YOU to have a gun either.”
“I don’t trust you.”
“What the hell do you mean you don’t trust me!?!”
“Just what I said. I’ve read your writings, I’ve seen what you have proposed, I don’t trust you... I am concerned that you might have the makings of a tyrant.”
“I’m not a tyrant! I just don’t think people can be trusted with guns!”
“Well.. I agree with you to a point. I don’t think people like you can be trusted with guns... we need to ban you and people like you from owning them.”
“That is crap! Who the hell do you think you are?!?”
“Well... I’m not done... I’m also not comfortable with you writing blogs, making speeches, voting, or owning property. Your ideas are just too... well you know... dangerous. I have a right to feel comfortable, and your political viewpoints just, well.. they make me feel uncomfortable.... I want to ban you from expressing them.”
“If I become the government I can.”
“But you say you're a Constitutionalist... if you were to do that you would be violating the Constitution.... those are fundamental rights.”
“As is the Second Amendment my friend.”
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