New Virginia Gun Laws Take Effect July 1st, 2011

Posted on June 26, 2011 by John Pierce

VA Capitol

UPDATE:  The 2012 update is available!

While this has been a landmark year for gun rights across the country with Wisconsin passing a carry bill and Wyoming moving to constitutional carry, Virginia continues to lead the way by passing pro-gun bills at an astonishing rate.  Lead by the tireless efforts of the Virginia Citizens Defense League, Virginia gun owners have much to look forward to on July 1st.

Shooting Air Guns Safely on Private Property

SB 757 allows someone on private property to be able to discharge an air gun (e.g. BB, Airsoft, or paintball) as long as they have permission from the property owner to do so and reasonable care is taken to ensure that the projectile does not cross the bounds of the property. Any local ordinances to the contrary, which many localities have, are preempted.

Adding a Firearm to the List of Items Protected From the Creditor Process

SB 839 amends Virginia’s Homestead laws to add one firearm, not to exceed $3,000 in value, to the list of items that every householder shall be entitled to hold exempt from creditor process.  This is an astonishingly important bill from a legal and public policy perspective because it recognizes that a firearm is an essential element of a citizens ‘homestead’, on par with the family bible.

Improvements to the Concealed Handgun Permit Issuance System

HB 1552 amends the language relating to the issuance of de facto concealed handgun permits. Current law states that if a court does not issue a permit or find that the applicant is disqualified, within 45 days of receipt of the application, the clerk is to certify the application and send it to the applicant. The certified application then serves as a de facto permit until the actual permit is issued or the applicant is found to be disqualified. This bill requires the clerk to mail or e-mail the certified application to the applicant within five business days of the expiration of the 45-day period.

Replacing a Lost or Stolen Handgun Carry Permit

HB 1856 requires the Circuit Court Clerk to replace a lost or stolen permit within ten days of getting a notarized statement of the loss for a fee of $5

Allowing Members of the Military to Use Pentagon Orders to Prove Residency

HB 1857 clarifies that a member of the military may provide permanent orders assigning him to the Pentagon for purposes of providing documentation of residency when purchasing a firearm from a licensed dealer.

Protection From Abuse of Preliminary Protective Orders

HB 1779 makes the prohibition on purchasing and transporting a firearm applicable to persons subject to preliminary protective orders only after a petition alleging abuse or neglect has been filed. Under current law, persons subject to a preliminary protective order are prohibited from purchasing or transporting a firearm regardless of any allegation which has the potential for significant abuse.

Other Due Process Improvements

HB 1699 clarifies the process by which a person acquitted of a crime by reason of insanity, adjudicated legally incompetent or mentally incapacitated, or involuntarily admitted or ordered to outpatient treatment may petition the courts for relief from disability.

HB 1411 provides that a person convicted of reckless handling of a firearm while hunting may lose their right to hunt and trap for a period of 1 to 5 years.  Current law allows up to a lifetime hunting and trapping prohibition for a first conviction of reckless handling of a firearm while hunting.

Posted in State Laws, Virginia | 2 Comments

California’s Proposed Open Carry Ban Heads to Senate Floor

Posted on June 25, 2011 by John Pierce

CA Assemblymember Anthony PortantinoThe purported goal of AB144, introduced by Assemblymember Anthony J. Portantino (D-Pasadena), is to outlaw unloaded open carry across the state.  The bill was introduced in response to an increasing number of Californians who have been openly carrying unloaded handguns as the only legal means of self-defense in the face of arbitrary and discriminatory denials of concealed carry permits.

But instead of correcting the discriminatory may-issue permitting system, Portantino’s solution is to remove even this limited right from the law-abiding citizens of California.  But AB144 is such a poorly drafted piece of legislation that it will have significant unintended consequences.

Interestingly enough, one of the consequences should AB144 become law will be a real possibility of the courts striking down California’s arbitrary, may-issue concealed carry issuance process.  In two recent court cases, the court cited the availability of open carry as a reason to not strike down the concealed carry process.

In Peruta v. County of San Diego, the court noted that:

Both Chandler and Nunn, the two cases relied upon by the Supreme Court, concerned prohibitions on carrying of concealed weapons where the affected individuals had alternate ways to exercise their Second Amendment rights—by openly carrying those weapons.

And in Richards v. County of Yolo, the court ruled substantially the same way, stating:

In determining whether government action “substantially burdens” a constitutionally-protected right, courts “typically ask whether the restriction leaves open sufficient alternative avenues” for exercising the right.
…
[E]ven if Plaintiffs are denied a concealed weapon license for self-defense purposes from Yolo County, they are still more than free to keep an unloaded weapon nearby their person, load it, and use it for self-defense in circumstances that may occur in a public setting.

In both cases, the availability of unloaded open carry allowed the court to determine that sufficient alternative avenues existed for citizens to exercise their right to self-defense.  Once unloaded open carry is no longer available, future challenges will likely find that a may-issue permitting scheme cannot pass constitutional muster.

Another consequence of AB144 will be to force those citizens who wish to exercise their rights to do so by openly carrying long guns, which are not affected by the handgun ban in the bill.  Portantino and those who support AB144 should expect to see shotguns and rifles carried on the Third Street Promenade in Santa Monica and in Starbucks from San Francisco to San Diego if AB 144 passes.

Finally, AB144 is a lengthy complicated mishmash which contains several serious drafting errors, discriminates against off duty police who work as security guards, and creates a complex web of confusing bans and exceptions to handgun carry that neither law enforcement nor the public will be able to understand.

AB144 now heads to the Senate Floor where a democratic majority is expected to pass it, thanks to a parliamentary maneuver which allowed the bill to skip its original schedule of being heard in the Senate Appropriations Committee on Monday, June 27th.

If the Senate passes the bill, then attention will shift to Governor Brown who will be under intense pressure from California gun owners to veto the bill.

 

Posted in California, Gun Control, Open Carry, State Laws | 10 Comments

Helmke to Step Down at Brady Campaign

Posted on June 24, 2011 by John Pierce

Paul Helmke Paul Helmke, Yale Law graduate and former Republican mayor of Fort Wayne Indiana who has served as the president of The Brady Campaign to Prevent Gun Violence since 2006, has announced that he is stepping down effective July 10th.

Despite his highly respected resume, during his tenure at the Brady Campaign, Helmke has presided over a steady decline in the organizations relevancy.

In January of 2010, Helmke announced that the Brady Campaign was giving President Obama a grade of ‘F’ for not pushing gun control during his first year in office.  Helmke himself had harsh words for the president stating that ““If I had been told, in the days before Barack Obama’s inauguration, that his record on gun violence prevention would be this poor, I would not have believed it … We have been very disappointed by his first year.”

President Obama, seeking to govern on the issue from the middle, has largely avoided the extremist positions espoused by the Brady Campaign, instead actually signing bills which opened National Parks to both open and concealed carry and allowed firearms in checked baggage on AMTRAK trains.  Helmke’s response was to complain that President Obama has “signed into law more repeals of federal gun policies than in President George W. Bush’s eight years in office.”

Helmke next attacked Starbucks for making the same business decision that most major corporations have made … to follow state law in determining whether legal firearms are welcome in their stores.  Helmke and the Brady Campaign responded by protesting Starbucks’ annual meeting and then called for a boycott, predicting lost customers and plummeting stock prices.  And once again … no one listened.  Gun owners have gone out of their way to frequent their local Starbucks and Starbucks’ stock in now trading over 50% higher than what it was in January of 2010 despite the weakened economy.

SBUX Two Year Trend

And in September of 2010, in response to Jon Stewart saying on Oprah that “Guns are not the problem … crazy is the problem”, Helmke wrote an Opposing Views column in which he chastised Stewart for daring to disagree with Brady Campaign dogma.  And once again … no one listened.

And to cap it all off, despite the increasingly shrill complaints of the Brady Campaign, as the 2011 legislatures wind down, state after state continues to liberalize their carry and self-defense laws.  Wyoming has passed constitutional carry while Wisconsin has passed its first concealed carry law.

Tired perhaps of fighting a losing battle, Helmke will only say that he is undecided about his next career move.  Brady Campaign Vice President Dennis Henigan will take over as acting-president while the organization searches for a new leader.

Posted in Brady Campaign, Gun Control | 6 Comments

Maine Governor Signs Multiple Gun Bills

Posted on June 23, 2011 by John Pierce

Maine Governor LePageMaine Governor Paul LePage has signed three separate bills which expand gun rights in Maine.

The first of these is LD 35, introduced by Representative Richard Cebra (R-Naples), which states that an employer cannot prohibit an employee who has a valid carry permit from storing a firearm in their personal vehicle so long as the vehicle is locked and the firearm is not visible.

This bill, which is now codified at Sec. 1. 26 MRSA §600, also provides immunity from liability for employers whose employees store their firearms in accordance with the provisions of the law.

The second bill Governor LePage signed was LD 446, also introduced by Representative Cebra, which provides that a current or retired law enforcement officer from another state may carry a concealed handgun in Maine provided they have appropriate identification.  This bill, now codified at Sec. 3. 25 MRSA §2001-A, sub-§2, ¶¶G and H, is a state statutory companion to the 2004 Law Enforcement Officers Safety Act (LEOSA) which is codified at 18 United States Code, Section 926.

The third bill signed by Governor LePage was LD 1347, introduced by … you guessed it … Representative Cebra.  This bill prevents the Bureau of Parks and Lands from prohibiting handguns carried by permit holders in any buildings or grounds under the Bureau’s jurisdiction.  This includes state parks and historic sites.

Maine voters should take the time to thank Governor LePage for signing these important bills.  They should also thanks Representative Cebra for his work in bringing forth all of these important bills.

Posted in Guns at Work, LEOSA, Maine, Public Parks, State Laws | 1 Comment

Pennsylvania Passes Self-Defense Improvement Bill

Posted on June 22, 2011 by John Pierce

Pennsylvania CapitolOn the same day that the Wisconsin Assembly passed their historic carry bill, the Pennsylvania Senate passed a bill which strengthens the statutory Castle Doctrine, removes the duty to retreat in certain public places, and offers a legal presumption of reasonableness in certain cases of self defense.   The bill, House Bill 40, was overwhelmingly passed by a vote of 45 – 5 with both Democrat and Republican support.

This bill, which now goes to Governor Corbett for his promised signature, contains numerous improvements to Pennsylvania law.   However, as I mentioned above, there are several key provisions which are of particular interest.

The first of these  is the Castle Doctrine improvements.  The definition of a ‘dwelling‘ was expanded to include ‘any attached porch, deck or patio‘ while a definition of ‘residence‘ was added which includes ‘A dwelling in which a person resides, either temporarily or permanently, or visits as an invited guest.‘  Similarly, a definition of ‘vehicle‘ was added to include ‘A conveyance of any kind, whether or not motorized, that is designed to transport people or property.’

These definitional changes are important because subsequent provisions, both new and existing, then incorporate them by reference into the newly enacted protections.  Since those protections consistently reference ‘dwelling, residence or occupied vehicle‘, they encompass everything from an intruder on the patio of a friends motorhome where you are visiting to someone attempting to rob you while you are horseback riding.

The second important improvement is the change to the Duty to Retreat provisions currently in Pennsylvania law when a citizen is not in their home or business.  Under the new bill, a person has no duty to retreat from a public place if they:

  • Are in a place where they have a right to be
  • Are not engaged in criminal activity
  • Are not illegally in possession of a firearm
  • Are faced with an armed assailant (firearm or other lethal weapon)
  • Believes it is immediately necessary to defend themselves against death, serious bodily injury, kidnapping or sexual intercourse by force or threat.

Finally, the most exciting aspect of the bill from a legal perspective is the presumption of reasonableness granted to a citizen who is forced to use deadly force under certain circumstances.  Under the bill, if a citizen is faced with an intruder who has forcefully entered a ‘dwelling, residence, or occupied vehicle‘ (or is in the process of doing so), then the citizen has a presumption of reasonableness in assuming that they are in imminent threat of ‘death, serious bodily injury, kidnapping or sexual intercourse by force or threat.’  The same presumption applies if faced with a person, even an invited guest, who is attempting to forcefully and unlawfully remove a person from the ‘dwelling, residence, or occupied vehicle.‘

I would be remiss if I didn’t note that there are a couple of notable exceptions to these changes to be aware of.  The presumption of reasonableness is inapplicable to peace officers (even if making an unlawful arrest), and to parents or others with legal custody of the person being removed from the ‘dwelling, residence, or occupied vehicle.‘

In closing, I would like to congratulate the citizens of the Commonwealth of Pennsylvania on both their newly recognized legal rights to protect themselves from criminals and their choice in legislators.  I also want to thank the Democrats and Republicans who supported this bill.  Good public policy and a recognition of civil rights should be the most bi-partisan issue there is and I am happy to note that, increasingly, this is the case across the country.

Posted in Castle Doctrine, Legal Presumptions, Pennsylvania, Stand Your Ground | 4 Comments

Wisconsin Carry Bill Heads to Governor Walker

Posted on June 22, 2011 by John Pierce

Wisconsin Governor Scott WalkerThe Wisconsin Assembly has passed a carry bill by a vote of 68 to 27.  The vote, which crossed party lines, sends the bill to Governor Walker who has stated that he supports the bill.

Once Governor Walker signs the bill, Wisconsin will become the 49th state to allow concealed carry, leaving Illinois as the sole remaining holdout against the self-defense movement which has swept across the nation over the last several decades.

And while this is a momentous day for the law-abiding citizens of Wisconsin, the fact that the bill was not a ‘constitutional carry’ bill shows that gun rights advocates have plenty of room to improve the legislation in subsequent years.

In the meantime, anti-civil-rights politicians are scrambling to find ways to circumvent the law.  Dane County officials have introduced a resolution that would ban weapons in county buildings while Madison Mayor Paul Soglin has indicated that he plans to enact an ordinance requiring written permission for gun owners to carry a weapon on any private property in Madison.

The problem with these obstructionist tactics is that they fly directly in the face of Wisconsin’s preemption statute which reads:

66.0409 Local regulation of firearms.
…
(2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

Mayor Soglin has stated that he fully intends to pass an ordinance in direct violation of state law and expects that the issue will need to be resolved by the courts.  In other words, in a period of unprecedented economic turmoil for Madison residents, Mayor Soglin believes that taxpayer money is best spent fighting a losing battle in the courts to make an ideological point.

The voters of Wisconsin needs to reward those Senators and members of the Assembly, both Democrat and Republican, who voted for the civil-rights of law-abiding citizens.  Simultaneously, they need to work hard to vote-out those who favor disarmed subjects over empowered citizens.

Posted in Concealed Carry, State Laws, Wisconsin | 3 Comments

Virginia Ranked 9th Freest State in The Nation

Posted on June 15, 2011 by John Pierce

The Mercatus Center public policy research center at George Mason University has released a study entitled “Freedom in The 50 States” and Virginia has placed in the top 10 free states.

According to the study, Virginia is not only the 9th Freest state in the nation but is the freest state in the South.

As far as gun laws are concerned, they specifically noted with approval the fact that unlicensed open carry is available in Virginia but felt that there was still room to improve, stating “Gun laws are decent, with much room for improvement.”

Virginia owes this honor in no small part to the tireless efforts of the Virginia Citizens Defense League who will, rest assured, be fighting every day to make those improvements the study calls for.

Posted in State Laws, Virginia | Leave a comment

Wisconsin Senate Passes Carry Bill

Posted on June 15, 2011 by John Pierce

Wisconsin CapitolThe Wisconsin Senate has passed Senator Pam Galloway’s (R – Wausau) Carry Bill SB93 despite a flurry of last minute amendments offered by Senate Democrats.  Among other things, the amendments would have significantly weakened the resulting bill by greatly increasing the number of locations off-limits to those with a carry permit.

But perhaps most egregious from my perspective, Senators Erpenbach (D – Middleton) and Risser (D – Madison) offered an amendment to bring open carry, long-held to be a right under the Wisconsin state constitution, under the auspices of the new law such that unlicensed open carry would no longer be legal.

It was also Senators Erpenbach  and Risser who introduced the amendment that would have created a minefield of off-limits places for permit-holders while an amendment by Senator Carpenter (D – Milwaukee) would have then transformed a violation of the carry statute from a Class A Misdemeanor to a Class H Felony with a mandatory 3 year sentence.

Under Senators Erpenbach and Risser’s amendment, the places you would not have been able to carry would have included:

  • The state capitol building
  • The state capitol park.
  • Any building or portion of a building that is owned, occupied, or controlled by the state or any political subdivision of the state (localities, agencies, bureaus, etc).
  • A clinic or office that is used by a licensed physician.
  • A building or portion of a building used by a health care facility.
  • Any church, synagogue, mosque, or other building, structure, or place primarily used for religious worship or another religious purpose.
  • A building or any portion of a building that is used for a domestic violence victim services program or by an organization that provides a safe haven for victims of domestic violence.
  • A place that is on the grounds of a University of Wisconsin institution or extension.
  • A private college or university.
  • A technical college district.
  • Any premises for which a Class “B” (alcohol sales) license or permit has been issued.
  • Any building or part of a building that is used to provide child care services, except that, if the building is a residence and the owner is a licensee, any weapon that is unloaded and securely locked or encased during the hours in which children are present for the child care services.
  • Any building or part of a building that is used by a county department of human services.
  • Any building or part of a building that is used as a nonprofit organization.
  • Any venue, or stadium at which public sporting events or public concerts are held.
  • Any amusement park, except that if an event related to firearms is taking place and the weapon is being used at the event.
  • Any building or part of a building where a bingo, raffle, lottery or race is conducted.
  • Any place that is within 1,000 feet of a polling place on an election day.
  • On any vehicle used for public transportation purposes.
  • Any public library.
  • Any common area in a building that is a residence that is not a single-family residence if the actor does not own the residence or does not occupy any part of the residence.

In the final vote, the bill easily passed 25 – 8 with six Democrats bravely crossing the aisle to vote for the civil rights of all Wisconsin citizens.  Wisconsin voters will do well to remember the vote breakdown below when it comes time to contribute time and money in the next election cycle.

The bill now moves on the the Assembly where it will be first heard in the Rules Committee as early as later this week.

Posted in Concealed Carry, State Laws, Wisconsin | Leave a comment

Breaking News on Operation Fast & Furious

Posted on June 14, 2011 by John Pierce

Posted in BATFE, Firearm Sales | 2 Comments

Using brandishing statutes to chill Second Amendment rights

Posted on March 4, 2011 by John Pierce

I have written before about the abuse of statutes such as Disorderly Conduct and Disturbing The Peace to punish otherwise legal behavior such as open carry.

Therefore, when I read the February 25th article by John Schneider in the Lansing State Journal in which Michigan lawyer Shannan Kane declared unequivocally that open carry was barred by Michigan’s brandishing statute, I knew that here was yet another attempt to use a poorly drafted statute to chill Second Amendment rights.

In that article, Kane was reported to have stated unequivocally that MCL 750.234e outlawed all open carry based upon a definition of brandishing as “to display ostentatiously.” Following that logic, she subsequently implied that open carry, in all its incarnations, is presumptively ostentatious and therefore prohibited.

What Ms. Kane should have been aware of as a member in good standing of the Michigan Bar is that Attorney General Granholm addressed, and dismissed, this particular issue in a 2002 opinion requested by Senator Bullard (2002 Mich. OAG No. 7101) regarding the question of whether a reserve police officer (who is not an actual law enforcement officer subject to the exception in MCL 750.234e and therefore similarly situated to any other citizen) commits the crime of brandishing when she openly carries a properly holstered handgun.

In that opinion, Attorney General Granholm noted that neither the Michigan Penal Code nor the Michigan Criminal Jury Instructions include a definition of brandishing, nor has it been defined in any case decided before the court in Michigan. Therefore, she concluded that it was appropriate to use dictionary definitions and to look to the meaning ascribed to the word in sister jurisdictions. AG Granholm noted that the dictionary definition in The American Heritage Dictionary, Second College Edition (1982), at p 204 is “1. To wave or flourish menacingly, as a weapon.” and that sister jurisdictions have looked to the definition in federal sentencing guidelines which defines “brandishing” to mean “that the weapon was pointed or waved about, or displayed in a threatening manner.”

AG Granholm concluded her opinion by noting that “[a]pplying these definitions … it is clear that a reserve police officer, regardless whether he or she qualifies as a “peace officer,” when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.” In other words, as is the case throughout the country, in Michigan, threatening behavior is the touchstone for brandishing.

Finally I should note that a thorough search of published and unpublished Michigan cases (all of which are as available to Ms. Kane as they are to me) does not yield a single prosecution for brandishing that did not involve the firearm being out of the holster, in the hand, and used to threaten or intimidate.

Based upon the totality of the evidence, it seems clear that the simple open carry of a properly holstered handgun is outside the scope of the brandishing statute. And I base that opinion upon far more legal evidence than Ms. Kane used in making her merely conclusory statement.

DISCLAIMER: As a law student, ethics require that I make it clear that all material presented here is offered as the layman’s opinion of the material and is NOT intended as legal advice. Those seeking legal advice should consult a Michigan licensed attorney (although probably not Ms. Kane where this issue is concerned).

UPDATE: In response to a number of comments (my own included), John Schneider noted the controversy surrounding Ms. Kane’s interpretation in his March 1 column.

 

Posted in Abuse of Discretion, Brandishing Statutes | 1 Comment