Jon Stewart attacked by Brady Campaign

As Jon Stewart continues to grow into his role as “America’s most trusted news anchor,” he appears to be becoming more libertarian in his views regarding the Second Amendment.

On his Thursday, August 19th, 2010 show, after pointing out that millions of peaceful Muslims should not be damned for the sins of the extremists, Stewart proceeded to say; “If only someone could step up and cut through all this political posturing, and fear mongering, and remind us what America is all about.

He then cut to moving video of former NRA President and beloved civil right activist Charlton Heston speaking out about the call from the political left in 1999 for the NRA to not hold their scheduled annual convention in Denver out of respect for the families of those who lost loved ones in the Columbine tragedy.

After the inspiring words of Charlton Heston explaining why we should not allow tragedies to drive us into abandoning the fundamental freedoms that define us as a nation and which bind us together as a people, Stewart admitted to having been one of those who called for the convention to be cancelled and then he did an astonishing thing.  He apologized.

He said the apology was for “connecting irresponsibly the actions of two psychotics to an entire group of reasonable people expressing their Constitutional rights… the point is, I was wrong and Heston was right.

There are few things that take greater courage than facing one’s own words and admitting that we were wrong.  And I applaud Stewart for being willing to do so.

But that’s not all.  Last Tuesday, September 21, 2010, Jon Stewart was a guest on Oprah to promote his Rally to Restore Sanity.  During the interview, the topic of school shootings arose and Stewart proceeded to proclaim that “Guns are not the problem … crazy is the problem” to thunderous applause from Oprah’s audience.  You may watch the relevant excerpts in the attached video, but he goes on to make a truly profound statement; “We cannot legislate our society to the craziest amongst us.

Speaking of which … Paul Helmke at the Brady Campaign (described tongue-in-cheek in a previous Daily Show Episode as a ‘Well funded hate group’) was quick to react to Stewart’s comments, chiding him for daring to disagree with the Brady’s plan to legislate the Second Amendment out of existence.  In an Opposing Views column, Helmke repeatedly asked ‘Really Jon?’ as he trotted out his tired and failed arguments about why Americans should be stripped of their civil rights.

Now … I am sure that Stewart agrees with the Supreme Court holding in Heller that the Second Amendment is not an unlimited right.  But I am equally sure that Stewart recognizes the fact that if Helmke and his ilk had their way, it would be no right at all.  And it appears that Stewart see that as part of the insanity that is driving a wedge between us as a nation.

I think I speak for all of us (except the Brady Campaign of course) when I say Restore the Sanity folks … and have fun doing it!

Posted in Media Views on The Second Amendment | Leave a comment

Madison alder declares constitutional freedoms to be ‘childish’

The ‘Madison 5’ incident continues to spread ripples across Wisconsin as the city and the police department struggle to defend their actions.

Background

Last Wednesday I wrote about the fact that the Wisconsin courts have not only held that a person may not be charged with obstruction for refusing to identify themselves but that “no reasonable person could believe that the obstruction statute includes within its terms persons who fail to identify themselves. Nor could a reasonable person determine that any other statute authorizes the arrest of persons for refusing to state their names. … Hence, the deputies in this case are not entitled to qualified immunity.”  Henes v. Morrissey, 533 N.W.2d 802 (1995).

I also wrote about the fact that, facing suits against both the city and the individual officers under 42 U.S.C. § 1983 (deprivation of rights under color of law), the obstruction charges were quickly dropped.  However, in a publicly released memo which appears clearly designed to have a chilling effect on the free exercise of rights in Madison, police chief Wray announced that all five law-abiding citizens who were open carrying that night would be charged with disorderly conduct.

According to the memo, these charges are based solely upon the proposition that the citizen who called police was ‘disturbed’ by seeing the men exercising their rights.  Mike Stollenwerk, DC Gun Rights Examiner, immediately demonstrated the falsity of this argument in his Friday article in which he included the 911 call from the supposedly ‘disturbed’ citizen wherein she stated that “there’s no problem and it’s no emergency . . .I feel bad then, if they’re not doing anything wrong then it’s my mistake.”

The legal analysis

Ultimately, when the dust settles from these five cases, Madison will have lost badly … and so will the taxpayers of the city.  Even a first year law student will tell you that one cannot be charged with a crime for the peaceful exercise of a constitutional right even if a citizen is unreasonably fearful of such an exercise (which was not the case here).  And in the case of Wisconsin, the right to bear arms is a state constitutional right backed up by the Second Amendment to the US Constitution which was held to be incorporated against the states via the Due Process Clause of the 14th Amendment in the recently decided case of McDonald v. Chicago.

Amazingly, in his memo, Chief Wray states that “the city’s disorderly conduct statute does not require an actual disturbance to take place, only that the conduct in question is of a type that tends to cause or provoke a disturbance.”  And while that may be true of the statute, local statutes do not operate in a vacuum, nor do they have the power to abrogate constitutional rights.  In fact, the Supreme Court has specifically noted that ‘constitutional rights may not be denied simply because of hostility to their assertion or exercise.’  Bachellar v. Maryland 1969 WL 120235.  And as a general constitutional principle, such a statute would be held to be unconstitutionally void-for-vagueness in any case, both lacking an intent requirement and failing to give adequate notice of what conduct is thus prohibited.

Going forward

A number of Wisconsin citizens have apparently attempted to start a dialog with the Madison City Council in an effort to achieve a legislative solution to the threats by Chief Wray to arrest all open carriers for disorderly conduct.  And while such an effort is one which I normally recommend, it seems as if the City Council is just as hostile to civil rights as the police department but with considerably less professionalism.

In one example, a Wisconsin citizen named Brent Hancock emailed his concerns about the recently released memo to the Madison alders indicating that he would no longer shop in Madison until the issue was addressed.  Madison alder Lauren Cnare (District 3) responded with the following:

Have a good time staying at home. While legal, it’s inappropriate and aggressive to pack your little pistols in public places. We won’t miss you or the childish displays of constitutional freedoms.

Lauren Cnare – District 3 Alder

Amazingly enough, the writer of this childish taunt is a public relations and communications professional in her day job.

I must ask … Is this the kind of person the citizens of Madison want representing them?  After all, anyone who would speak of constitutional freedoms with such vitriol and bigotry is clearly unworthy of public office.

Posted in Abuse of Discretion, Law Enforcement Misconduct, Open Carry, Wisconsin | Leave a comment

The tyranny of the bigoted comes to Madison Wisconsin

An unjust law is itself a species of violence. Arrest for its breach is more so.” – Mahatma Gandhi

A little over a year ago, I wrote about the disorderly conduct arrest of Harvard professor Henry Louis Gates Jr.  At the time, I noted that ‘disorderly conduct‘, ‘disturbing the peace‘ and other such catch-all offenses pose one of the greatest threats to the free exercise of civil rights in America.

With no clear definition of what constitutes behavior that is ‘disturbing’ or ‘disorderly’, many in law enforcement use such laws as a way to both control and punish citizens for otherwise legal and constitutionally protected behavior.

I had hoped at the time that the public attention directed toward the problem by the arrest of Professor Gates would have encouraged legislative reform or, at a minimum, better training of law enforcement.  Unfortunately, as is often the case where civil rights are concerned, the spotlight quickly dimmed and nothing has changed.

And thus the harassment suffered by five law-abiding members of Wisconsin Carry at a Culver’s restaurant in Madison, Wisconsin last Saturday evening should come as little surprise.

Arriving at the restaurant, the five victims entered, ordered their food and sat down … unaware that a 62 year old customer who had noticed the properly holstered handguns on their sides had called 911.  In the call, the 62 year old women reportedly told police that she “didn’t know what the law was” and that she thought she “should at least call so the police can come and check it out” because she “didn’t want to be that one person that saw guns and didn’t call, and then have something terrible happen.”

Police responded in force with eight officers approaching the table where the five men were eating dinner.  And I should note that up until this point, the encounter was completely within the bounds of propriety.  The police had received a call … and in the interest of public safety, they had responded.  But here is where the officers departed from the law.  Instead of verifying that the men were nothing more than law-abiding citizens and leaving, officers escalated the situation by demanding ID.

Now for those of you unfamiliar with the laws of Wisconsin, let me assure you that there is no requirement in Wisconsin law to carry your papers with you and produce them upon demand.  Officers may request ID.  However, they have no authority to demand it of citizens who are doing nothing more than exercising what is a constitutionally protected activity in Wisconsin.  But these officers were insistent, stating “Identify yourself or you will be arrested for obstruction.

And the officers made good their threat.  When two of the men at the table, knowing that the officers lacked the authority to make such a demand, refused to provide ID, they were handcuffed, placed in a patrol car and despite stating emphatically that they did not consent to a search of their person, were physically restrained while their wallets were taken from them by force.  Upon using the seized IDs to verify that the men were not felons or otherwise disqualified from possessing firearms, they were released, had their firearms returned, and were given a ticket for obstruction.  The officers subsequently left the men at the restaurant and departed.

The charge of obstruction was made under the following statute:

5.06 ASSISTANCE IN MAKING ARREST – LIABILITY FOR RESISTING OR OBSTRUCTING AN OFFICER.

(1) Whoever, without reasonable excuse, refuses or fails upon command, to aid any person known to him to be a peace officer may be fined not more than one hundred dollars ($100). This section does not apply if under the circumstances the officer was not authorized to command such assistance.

(2) Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than five hundred dollars ($500). In this section:

(a) “Officer” means a peace officer or other public officer or public employee having the authority by virtue of his office or employment to take another into custody.

(b) “Obstructs” includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process. (Am. by Ord. 9977, 3-14-90)

(3) Whoever hinders, delays or prevents an officer from properly serving or executing any summons or civil process, is civilly liable to the person injured for any actual loss caused thereby and to the officer or his superior for any damages adjudged against either of them by reason thereof.

In analyzing this statute, it immediately becomes clear that providing false information to an officer may constitute obstruction but silence is not addressed at all.  In fact, if we look to the Wisconsin courts, we find that this question is long settled law.  In a 1995 case addressing a similar case, the courts held that “Mere silence, standing alone, is insufficient to constitute obstruction …Without more than mere silence, there is no obstruction.” Henes v. Morrissey, 533 N.W.2d 802 (1995).  Even more interestingly, in the same case, the courts stripped the offending officers of qualified immunity, stating that “no reasonable person could believe that the obstruction statute includes within its terms persons who fail to identify themselves. Nor could a reasonable person determine that any other statute authorizes the arrest of persons for refusing to state their names. … Hence, the deputies in this case are not entitled to qualified immunity.

As discovered by the Vice President of Wisconsin Carry, Hubert Hoffman, this issue had also been specifically addressed in a City of Madison Police Department legal update.  Based upon this information, in my opinion it is clear that in this case, officers will not enjoy qualified immunity.  And it seems that someone must agree with me because suddenly today we find that the obstruction charges have been rescinded.

However, in a move that can only be described as a combination of retaliation and intimidation, all five of the men have now been charged with disorderly conduct based upon the fact that the 62 year old woman who called police, in a subsequent interview, made the statement that she was “somewhat rattled” and “uneasy” when she saw the holstered handguns.

Let me get this straight … The five men, two of whom police had returned firearms to, and who were so ‘dangerous’ that the officers on the scene left them fully armed amongst the other patrons of the restaurant and departed, are now seen to have been engaging in disorderly conduct.

In a stunning memo by the Madison Police Department released today, the Madison Police seem to be encouraging citizens to call 911 whenever they see citizens lawfully open carrying and imply that they will use the disorderly statute’s vague requirements of “conduct of a kind likely to cause a disturbance” to arrest all such open carriers they encounter.

The memo went on to state that the basis for the charge was the 62 year old woman’s recognition of the ‘potential for violence‘ inherent in the handguns and her fear of that potential.  Given those marching orders, I suspect that it is only a matter of time before a bigoted patron of a restaurant, concerned over the rather tough looking biker couple dining at the next table, calls 911 and demands they be arrested for a disorderly conduct charge because he thinks them to have a ‘potential for violence.’  And perhaps the police will comply.  After all, if the police have to respond, the memo seems to suggest, someone’s getting arrested.

So where does this go from here?  Culver’s has already spoken out, declining to institute a ‘no firearms’ policy in their restaurants and gun owners should reward them for it with their wallets.  May I suggest the ButterBurgers?

As for the five victims in this case, I suspect that I will be writing more about them in future columns as they decide upon an appropriate course of action.

Posted in Abuse of Discretion, Law Enforcement Misconduct, Open Carry, Wisconsin | 1 Comment

Contempt of court George Wallace style

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” – Chief Justice John Marshall (Marbury v. Madison)

Hard on the heels of yesterday’s Supreme Court ruling in McDonald v. Chicago that the Second Amendment to the US Constitution protects an individual right to bear arms for self-defense and that the right thus protected is incorporated against state and local governments, Chicago Mayor Daley expressed his contempt for both the Court and the citizens whose rights he has trampled.

In an afternoon press conference, Daley announced that the city would enact new ordinances making it as difficult as possible to purchase and own a gun in Chicago. During his rant, he promised to seek ways to attack the right to bear arms from the supply side, vowing to go after manufacturers and crack down on gun shops and gun shop owners. He also noted that only “responsible adults” would be allowed to purchase or possess guns and left open the extremely disturbing question of who gets to determine which citizens are responsible and therefore ‘worthy‘ of civil rights.

After all, when you hear Mayor Daley proclaim his intentions to subvert the clear ruling of the Supreme Court, it is hard not to remember Governor George Wallace standing in the doorway of the University of Alabama’s Foster Auditorium blocking access to African-American students Vivian Malone Jones, Dave McGlathery and James Hood after the 1954 Supreme Court ruling in Brown v. Board of Education.

Then, as now, a seasoned politician felt his opinion superseded the rights of citizens and was willing to use the power of their office to deny those rights to citizens they deemed ‘unworthy.

View more news videos at: http://www.nbcchicago.com/video.

But as I listened to Mayor Daley equate gun owners with “drug thugs” and chastise the federal government for not doing more to make legal gun ownership more difficult, I found it incredibly ironic. This is the mayor of a city whose 28 year absolute ban on handgun ownership has completely disarmed law-abiding citizens and yet, on a recent weekend in Chicago, with the ban in full effect, there were 54 shootings which resulted in 10 deaths, including a baby girl.

The problem in Chicago is not guns in the hands of law-abiding citizens. It never was. The problem is crime … crime driven by poverty, and hopelessness, and drug abuse, and all the social ills that accompany them. And because Mayor Daley, in his 21 year tenure, has not been willing or able to address these very difficult problems, he seeks to blame gun owners.

This elitist defiance should not surprise those familiar with Chicago politics and the antics of the Daley administration but it should serve as a grim reminder to gun owners and civil libertarians that despite the victories in Heller and McDonald, the legislative and judicial battles are far from over.

Posted in Abuse of Power, Chicago, McDonald v. Chicago, Second Amendment Case Law | Leave a comment

‘Substantive’ victory for gun owners

I would follow what I believe was the original purpose of the Fourteenth Amendment-to extend to all the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.” – Justice Hugo Black

The landmark ruling in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms unrelated to militia service failed to directly address the question of incorporation (or whether the right to bear arms applies not only to the federal government but also to the states). For a more complete understanding of incorporations, see my earlier article “Incorporation 101: The Second Amendment is no good here”.

In Footnote 23 of the Heller decision, Justice Scalia acknowledged the need to resolve the issue of incorporation when he commented that while United States v. Cruikshank and its progeny Presser v. Illinois and Miller v. Texas all held that the Second Amendment applies only to the federal government, Cruikshank also held “that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” The implication to be drawn from this comment was a willingness on the part of the Court to entertain a Second Amendment incorporation challenge based upon current Fourteenth Amendment jurisprudence.

And true to their word, the Supreme Court granted certiorari in the case of McDonald v. Chicago to resolve the question of Second Amendment incorporation, setting the stage for a second seminal Second Amendment ruling in as many years.

Today, we received that long-anticipated holding.

As expected, the opinion, written by Justice Alito, holds that the Second Amendment DOES in fact, incorporate against the states through the Due Process Clause of the 14th Amendment.

On an interesting side note, the argument put forward by lead counsel Alan Gura that the case should be viewed as an opportunity to revitalize the Privileges or Immunities clause of the 14th Amendment was soundly rejected by the court despite having support from a broad spectrum of constitutional law scholars. Only Justice Thomas found favor with the Privileges or Immunities argument while the majority opinion specifically stated that the Court will NOT be reconsidering the Slaughterhouse Cases which effectively renders the Privileges or Immunities Clause of the 14th Amendment permanently obsolete for constitutional purposes.

In using the vehicle of the Due Process Clause, the court evaluated the place of firearms in the history, tradition and practices of our nation and their place in ordered liberty. In a quote destined to be repeated many times, the court noted that “Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right.

Alito also went out of his way to note that the ruling in Heller was NOT limited to the home but that the home was merely the place where the need for self-defense is the most acute. This portion of his opinion seems to set the groundwork for future cases covering the ‘bear’ portion of the right to keep and bear arms.

It is also illustrative (but not surprising) to note that Justice Sotomayor, who had argued so strenuously during her confirmation hearings that she had only ruled against gun rights in the case of Maloney v. Cuomo because she was bound by the ruling in Presser, joined in Justice Breyer’s dissent.  See my analysis of her record in my previous article “Giving Sotomayor a fair hearing.”

So where do we go from here?

What will the McDonald ruling mean for most states? In my opinion, it will mean very little for the majority of states (which regulate with a light touch). Minnesota for example, which has state preemption of firearms laws, offers carry permits, and does not put significant roadblocks in the path of purchase, possession or transportation would likely not see any successful Second Amendment challenges to the laws as written.

States such as New York, New Jersey, Maryland (most of the Northeast in fact), Hawaii and California should all expect challenges to their individual draconian laws.

As for Otis McDonald and the hapless Daley administration of the city of Chicago, the case has been remanded to the 7th Circuit for review consistent with today’s holding.

Posted in Incorporation, SAF Litigation, Second Amendment Case Law, United States Supreme Court | Leave a comment

The man who single-handedly scuttled voting rights for DC

On Monday April 19th, DC residents seeking a vote in Congress were on the verge of achieving what they had worked for over 50 years to accomplish. Both houses of Congress were willing to grant DC a voting seat in Congress. The catch? In order to get the voting seat, they had to accept an easing of DC’s draconian gun laws. That’s right … in order to get one right that they felt strongly about, all they had to do was accept other rights for the residents of DC.

The deal had been accepted by DC’s non-voting Congresswoman Eleanor Holmes Norton and House Majority Leader Steny Hoyer (D-Md). While both opposed the gun-rights amendment introduced by Senator John Ensign (R-NV), they had agreed to the deal the prior week noting that the window of opportunity for passing DC voting legislation was closing. In a released statement, Norton commented that

The strength of gun forces in the Congress has grown, not diminished, over the year since we began working. … It is now clear that the gun amendment can be passed as a standalone bill or attached to another piece of legislation, and we see no better opportunity in sight for voting rights for our residents. The Democratic majorities in the Senate and in the House are already diminishing and are expected to be reduced even further. Moreover, this is the first time we have had a president in office who will sign the bill along with majorities in Congress to pass it.

DC Mayor Adrian Fenty agreed with Norton, noting that gun-rights supporters would ultimately weaken the city’s gun laws regardless of whether they accomplished it via this legislation and by supporting the bill with the Ensign amendment, DC would finally get a voting seat in Congress.

Therefore, Monday morning Norton and Hoyer happily announced that they were expecting the bill to be voted on in the House later in the week.

And then … all Hell broke loose. The Brady Campaign, seeing one of the last, failed bastions of gun control on the verge of disappearing, mustered what little influence they still had and called on their remaining supporters to scuttle the bill.

Suddenly, groups that had long been vocal supporters of DC voting rights decided that a voting seat wasn’t that important after all. Not if they had to allow the residents of DC the same gun rights enjoyed throughout the rest of the country. Mary G. Wilson and Billie Day of the League of Women Voters of the United States and the D.C. League of Women Voters issued a joint statement saying that the “destruction of D.C.’s gun-safety laws is too high a price to pay for passage of the D.C. Voting Rights Act.

Paul Helmke of the Brady Campaign expressed little sympathy for Norton and the DC residents she represents even if his intervention permanently cost them their chance at a voting seat in Congress.

She’d really like to have her vote count, and she’s concerned that after the elections this fall they won’t get another chance to get a vote for the District. And that’s a legitimate concern, but our feeling is that that’s giving up too much to gut the nation’s gun laws.

Under pressure from the ragged remnants of the gun control lobby and abandoned by their supposed allies, the very next day (Tuesday, April 20th) the Democratic Leadership backed down and withdrew the bill from consideration, abandoning voting rights for DC for the foreseeable future, perhaps permanently.

Exactly one week later, as predicted by both Norton and Fenty, a standalone bill to bring DC’s gun laws in line with the rest of the country was introduced by Senators McCain (R-Ariz.) and Tester (D-Mont.).

So where does this leave DC? Regardless of the legislative vehicle, the near future almost certainly holds an easing of DC’s draconian gun laws. But the same cannot be said for DC voting rights. It may literally be decades before there is once again a political environment that will even consider it.

When DC voting rights supporters recover from their shock enough to ask “What just happened?”, Norton and Fenty should remind them that they have only Paul Helmke and the gun control movement to thank.

One just has to wonder. What is it about DC residents that gun control advocates fear so much?

Posted in Brady Campaign, District of Columbia | 1 Comment

The Obama Administration Year One: The flight from gun control

Much to the surprise of many, President Obama’s first year in office has not featured a push for new gun control legislation. In fact, not only has he not pushed for new legislation, he has actively resisted calls by gun control groups while signing legislation allowing open and concealed carry in National Parks and Wildlife Refuges as well as allowing firearms on Amtrak trains.

In fact, the Brady Campaign is so up upset with President Obama that they rated him an ‘F’ on their annual report card. In a report issued on January 18th of this year, they noted that in just one year, President Obama has “signed into law more repeals of federal gun policies than in President George W. Bush’s eight years in office.” I must admit that this sentence in their report brings a huge smile to my face every time I read it!

Earlier today, I was speaking with a reporter about this happy state of affairs and was asked the following question:

Does this mean that those gun-owners who feared that the President would push gun-control were simply paranoid?

My answer: “Of course not!

As the Brady report also notes, as a candidate, then-Senator Obama spoke approvingly of a number of gun control proposals. The logical inference to take from his campaign speeches was at least a willingness to consider the radical gun-control agenda of the Brady Campaign.

But then the Supreme Court handed down their landmark ruling in Heller while states continued to liberalize their gun laws at an astonishing rate. As gun ownership and carry became increasingly a normal part of society, President Obama, astute politician that he is, turned his back on what was clearly a losing proposition.

Let’s take a quick look at how President Obama’s approach to federal gun control has evolved:

At the end of March, 2009, gun owners were completely justified in fearing that the Obama Administration was planning for gun control to be a major element of their domestic agenda.

But then …

Clearly, President Obama and the Democratic Leadership recognized what gun owners have known all along; gun owners are as diverse as America and loyal Democrats wish for their Second Amendment rights to be protected just as do Republican and independent gun owners.

President Obama’s gun rights transformation is proof, not of a change in his core beliefs, but of a change in America itself as gun rights escapes the historical bounds of hunting and becomes mainstream. In order to maintain the momentum of this trend, it is incumbent upon those of us who believe first-and-foremost in gun rights, to continue to reach out to gun owners of all political and ideological persuasions and welcome them with open arms.

Posted in National Politics, President Obama | 2 Comments

Why ‘Open Carry’ Gun Laws Work

This is an article I originally wrote for US News & World Report.

The phrase “open carry” refers to the act of law-abiding citizens carrying a properly holstered handgun in plain sight, wherever it is legal to do so, as they go about their daily lives. This includes such mundane tasks as driving to work, walking the dog, grabbing a cup of coffee at Starbucks, or buying a book at Barnes & Noble. Those who choose open carry are just going about their business while armed, just as do the 6 million-plus Americans who hold concealed-carry permits. The only difference—open carriers have taken their jackets off.

Contrary to popular opinion, the ability to carry a weapon openly does not currently derive from the Second Amendment to the U.S. Constitution but rather from the constitutions and statutes of the 50 states. This is important because those who are opposed to open carry often attempt to characterize it as an oddity of the law or a mischaracterization of the U.S. Constitution. Nothing could be farther from the truth.

In fact, in the majority of states, any law-abiding citizen who is not otherwise prohibited by law from possessing a firearm may openly carry a loaded handgun with no license or permit required. In the majority of these 29 states, this right is based upon state constitutional provisions. And while anti-gun activists often argue that the prefatory clause of the Second Amendment to the U.S. Constitution brings the intent of the framers into question, the history, tradition, and practice of law-abiding citizens peacefully bearing arms is spelled out time and time again in state constitutional provisions whose interpretation is clear.

In an additional 14 states, citizens who hold a state-issued carry permit may carry openly or concealed as they see fit. It is of particular import that in these states, the legislatures crafted their carry statutes in such a way as to avoid requiring concealment of the firearms thus carried. If open carry were the public safety issue that anti-gun activists proclaim it to be, it is hard to imagine 14 separate legislatures actively passing legislation enabling the practice. It is also illustrative to note that the majority of these carry statutes have been passed within the last several decades. This demonstrates that such legislative thought is not an anachronism, as often claimed by those who are anti-gun. Rather, such carry statutes reflect a modern, individual-rights focus that finds open carry appropriate when balancing the personal protection interests of its citizens with the state’s interest in ordered liberty.

In attempting to discredit open carry, anti-gun activists often like to ask the question, “How do I know that the person openly carrying is in fact a law-abiding citizen and not a criminal?” While this is an attempt to imply that anyone who lawfully carries a firearm is a potential criminal, thankfully there is an authoritative answer available. The 2006 FBI study “Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers” by Anthony Pinizzotto revealed that criminals carefully conceal their firearms, and they eschew the use of holsters. In layman’s terms, this report tells us that, statistically speaking, citizens who are openly wearing a properly holstered handgun and are willing to subject themselves to the intense public and law enforcement scrutiny that open carry brings with it are not criminals.

But with open carry legal in some form in 43 states, and with the practice becoming increasingly common, it is not surprising that citizens unfamiliar with the practice might have questions when they first see a neighbor carrying openly. And these questions are often directed to local law enforcement. One of our key missions at OpenCarry.org is to serve as an educational resource for citizens and law enforcement alike when such questions arise in order to insure that interactions between citizens and law enforcement respect both the rights of the citizen and the difficult job being performed by the officer. Interestingly, the increasing normality of open carry has helped to ensure that law enforcement officers across the country have been educated about its legality, rendering such encounters infrequent.

So is open carry right for America? The answer is an unequivocal “yes!” Already present in the vast majority of states, the increasing popularity of the open-carry movement is a visible symbol that the right to bear arms remains a vital, core right of American citizens.

Posted in Media Views on The Second Amendment, Open Carry | Leave a comment

The great registration myth

I have just released our latest map over at OpenCarry.org. It categorizes all 50 states based upon the kinds of firearms registration laws (if any) that the state has implemented.

This is a resource that we should have developed long ago because registration is one of the great myths and misconceptions about firearms in America. I have been teaching firearm safety and carry permit classes for almost a decade now and this is a topic that I have to cover in every single class. And it never ceases to amaze me how gun owners who are otherwise incredibly well informed about the laws regarding firearms will blithely tell me that their guns are “registered.”

At the heart of this misunderstanding lies the background check required for all purchases from a federally licensed firearms dealer. Faced with the bureaucratic detail of the BATFE 4473 form, many gun owners mistakenly think that the firearm is being “registered” at the same time that the background check is being conducted.

But nothing could be further from the truth. In fact, the same law that mandates the background check also prohibits the data being used for registration purposes and requires that all data thus collected be destroyed other than the identifying number and the date the number was assigned.

This explains why gun owners are confused about registration, but what about non-gun owners? The fault here lies almost exclusively with the media (TV shows, movies and news reports). From CSI to NCIS to daytime soap operas, registration is presented as a given, even in those states where registration is specifically banned by state law.

And why is this? Some will be quick to say that the main-stream media is anti-gun and takes every opportunity to present an anti-gun viewpoint. Others will accuse the writers of entertainment shows of simple laziness in the face of research they feel to be immaterial in a fictional show. And while both of these are probably true to a certain extent, I believe there is a simpler explanation.

Much of the writing, production and filming of TV shows and movies occurs in California, New York, Las Vegas & Chicago. If you look at our map, you will see that these are some of the rare areas where there actually is some form of registration required. In speaking today with members of the media who live in California or New York, they invariably expressed disbelief and amazement that their states are such far outliers where gun laws are concerned.

This myopic tunnel-vision invariably bleeds over into both entertainment scripts as well as new reports. As a result, the public is ill-served and lead to believe in an illusion.

The reality is that outside of DC, Chicago, and a few states, gun registration is largely unknown in America, and Canada is moving to abolish their national gun registration system.

The few states and cities that do have registration requirements are small, isolated islands in the sea of gun freedom that is America. To my friends and colleagues marooned on these islands I can only say, “Come on in … the water’s fine!”

Posted in Myths & Misconceptions, Registration | 4 Comments

Six inches from slavery

According to the National Oceanic and Atmospheric Administration, the city of King NC has received approximately six inches of snow over the last seven days. Apparently, that snowfall, coupled with limited power outages, was frightening enough that, last Friday February 5th, 2010, King Mayor Jack Warren declared a local state of emergency pursuant to North Carolina General Statute § 14-288.12.

Now … the first inclination of a Minnesota resident when hearing of such a response to a snowstorm is to laugh. But this declaration was no laughing matter for the citizens of King. With the stroke of a pen, the mayor stripped them of their fundamental right to travel, to peaceably assemble, and to openly bear arms as enumerated in the North Carolina Constitution. In addition to the denial of fundamental and enumerated rights, the declaration also had the effect of denying the privileges granted by a North Carolina Concealed Handgun Permit issued under North Carolina General Statute § 14-415.11.

My first thought, when hearing this, was to assume that the impact upon the privileges granted by the Concealed Handgun Permit was simply the result of unintended consequences on the part of the drafters of the legislation. However, a quick look at § 14-415.11(c) and the comments of the Attorney General shows that this is not the case. North Carolina’s Concealed Handgun Permit law was written with full knowledge of, and intent to preserve the power of, the State of Emergency statute.

“And how broad are these powers?” I hear you asking. And the answer is “very broad indeed.” Under § 14-288.12, the governing body of any municipality may declare a state of emergency with vast, far-reaching consequences on the rights of the citizens living in, or traveling through, their jurisdiction.

The statute in full provides:

Powers of municipalities to enact ordinances to deal with states of emergency.

(a) The governing body of any municipality may enact ordinances designed to permit the imposition of prohibitions and restrictions during a state of emergency.

(b) The ordinances authorized by this section may permit prohibitions and restrictions:

(1) Of movements of people in public places;

(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate;

(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages;

(4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline; and

(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

The ordinances may delegate to the mayor of the municipality the authority to determine and proclaim the existence of a state of emergency, and to impose those authorized prohibitions and restrictions appropriate at a particular time.

(c) This section is intended to supplement and confirm the powers conferred by G.S. 160A-174(a), and all other general and local laws authorizing municipalities to enact ordinances for the protection of the public health and safety in times of riot or other grave civil disturbance or emergency.

(d) Any ordinance of a type authorized by this section promulgated prior to June 19, 1969 shall, if otherwise valid, continue in full force and effect without reenactment.

(e) Any person who violates any provision of an ordinance or a proclamation enacted or proclaimed under the authority of this section is guilty of a Class 3 misdemeanor.

As a civil libertarian, I find the civil rights implications of this statute to be incredibly frightening. Citizens of King speaking out via YouTube seem to be similarly shocked by the ease with which they were rendered virtual prisoners of the state.

One has to wonder just what motivated North Carolina legislators to grant such draconian powers to local officials.  The North Carolina Legislature needs to address this ASAP to remove the sweeping intrusions on citizen’s rights and more “narrowly tailor” the powers to what local officials truly need in order to manage local emergencies.

UPDATE:  King Police Chief Paula May stated in a news report today that no enforcement actions were taken and that the state of emergency has been lifted.  Let’s hope this serves as a wakeup call to legislators to quickly bring the statute into the light of current constitutional jurisprudence.

Posted in North Carolina, State of Emergency Laws | Leave a comment