Archive for the 'Second Amendment' Category

In the Southern district of New York, Judge Cathy Seibel has taken draconian action regarding second amendment rights, but before we get to that, let’s briefly rehearse just where the decisions in Heller and McDonald have left us.

In Revisiting the Second Amendment Right to Bear Arms, we discussed how state judges in Illinois, Maryland, Massachusetts and New York have ruled recently that there is no constitutional right to carry a loaded gun for self-defense. And in Virginia, the U.S. 4th Circuit Court of Appeals upheld the federal conviction of a man who fell asleep in his car near Washington’s Reagan National Airport with a loaded gun.  This last case of falling asleep in a car is the case of Sean Masciandaro, who was on National Park land and didn’t remove ammunition from his weapon and move it from the proximity of his weapon (e.g., place it in a remote location such as the trunk).  In the Petition for Write of Certiorari to the Supreme Court on his behalf, it is observed that:

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. 9 For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

But if the stolid state courts believe personal possession (outside of your domicile) is an open question in the wake of Heller and McDonald, Judge Cathy Seibel has gotten rather assertive concerning what she believes concerning our rights.

In a precedent setting case, a federal judge has ruled that individuals do not have a constitutional right to carry a concealed handgun in public.

The decision was rendered in the case of Kachalsky, et.al v. Cacace, et.al in the Southern District of New York.

The Attorney General’s office represented four state court judges who had been named as defendants in the case. who also serve as “licensing officers” under the New York statute.

Five individual plaintiffs residing in Westchester County, and one organization, the Second Amendment Foundation Inc., argued that the “proper cause” provision of the New York law governing the issuance of licenses to carry concealed handguns in public violates their rights under the Second Amendment to the U.S. Constitution as defined in two recent landmark decisions by the United States Supreme Court, District of Columbia v. Heller and McDonald v. City of Chicago.

The “proper cause” provision requires a license applicant to show “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.”

The Attorney General’s office argued that the “proper cause” provision of the New York law did not violate the Second Amendment as described by the Supreme Court in Heller and McDonald.

Judge Cathy Seibel agreed, ruling that the Second Amendment provides the right to keep arms for the purpose of self defense in the home, but does not extend to a right to carry concealed handguns in public.

The judge further ruled that even if the Second Amendment were read to cover such a right, the New York”proper cause” provision passes constitutional muster under the Heller and McDonald rulings because the law is substantially related to important governmental interests, namely the promotion of public safety and the prevention of crimes perpetrated with concealed handguns.

Possession of firearms isn’t a right, it’s a privilege granted by state review of your specific need.  The combination of progressive judges, the failure of the public to assert constitutional rights, and muddled, short-sighted decisions by the Supreme Court has led us to a state of near anarchy in lower court decisions concerning the second amendment.  The need of hour is for citizens to be diligent, and for the Supreme Court to be clear in their next ruling on the second amendment.

Daniel Hammarberg, writing at American Daily Herald, gives us an absolutely must-read article and commentary on Swedish gun control, its laws, the evolution of the thinking behind Swedish gun control, and lastly, a serious warning.  After outlining the recent history of the laws, Hammarberg discusses the push for still stricter controls.

Though most people would consider these laws outright draconian, there are plenty of calls for even more strict legislation; something that just as in the USA also takes place in Sweden when there’s a tragedy involving guns, such as the recent massacre by Norwegian terrorist Anders Breivik. On the 9th of August, an opinion piece by a child physician published in one of Sweden’s largest newspapers, called for a complete ban even on pistols. Measures such as these have strong support in the country’s medical community and among the political establishment. After another man had gone on a shooting spree last year in Malmö, with five attempted murders and one actual homicide, there was a complete media frenzy, and Minister of Justice Beatrice Ask took the opportunity to present her view on how one could come to terms with the problem of gun violence.

“Beatrice Ask also feels that an overhaul has to be made of the weapons regulations, that gun permits for example have to be subject to inspection and review.”

The health authorities also added their two cents:

“The National Board of Health and Welfare has previously forwarded requests both for review of gun permits and that everyone applying for one shall also have to present a doctor’s certificate. There the Minister feels that mental illness is a factor that shall mean that you’re denied a gun permit.”

Following this, on 16 November, Ask also announced before the parliament that a new, stricter weapons law was in the works. To quote:

“The police shall also be able to request a statement from the social welfare board and the prison service along with a doctor’s certificate to determine whether someone is fit to own firearms.”

Hence, what this means is that you might have to show your criminal record sheet, whatever journal notes the social services has kept on you (and they play a significant role in Swedish society), as well as produce a certificate from a psychiatrist that you are indeed mentally competent (guilty until proven innocent).

In order to obtain a Concealed Handgun Permit in my home state of North Carolina, a background check was conducted, and I had to sign over rights to my medical records to the Sheriff of my county.  Any history of substance abuse or mental illness would have disqualified me.  Of course, there were no problems and I have the permit, but this is really beyond agreeable limits as far as I am concerned.  It places the decision-making for suitableness to carry a weapon for self defense in the hands of someone who may adjudicate the matter based on subjective feelings, variable rules for mental health from county to county or state to state, or for any number of other non-scientific, non-quantifiable reasons.  Yet, Sweden now requires a psychiatric evaluation, and without clearer opinions from the Supreme Court, the U.S. may be headed there.  Continuing with Hammarberg’s analysis (and this is the important part).

In spite of the tyrannical control of firearms, this has had little effect on the explosion in the violent crime rate the country has been suffering from during the last couple of decades, with a homicide rate that’s now at an historic all-time high, with 333 reported cases during 2010, or about 2/3 of the American rate; rape and assault rates are over twice as high as the American ones (Editorial note: Gun control never really accomplishes the stated justification of reducing violence; this is always a veneer or pretense for the laws).

And whilst the government has always attempted to tighten the noose around legal gun owners after every incident of this sort, the vast majority of violent crimes are committed through the use of illicit weapons. The control of these illicit weapons isn’t nearly as successful as the one of their legal counterparts, as admitted in a police interview from 2005. To quote:

“The police estimate that thousands of firearms are smuggled into Sweden ever year. Every day on average, three serious crimes are committed with illicit firearms. Yet Customs has a hard time intercepting the gun smugglers. During 2003 and 2004, fewer than twenty firearms were seized by Swedish Customs workers.”

One of the most publicized shooting sprees in Swedish history, during which a man in mass media labeled Lasermannen — “The Laser Man” – shot at eleven immigrants and killed one of them, was also committed with an illicit weapon, and hence would not have been affected by these control efforts. This doesn’t seem to bother the police though — somehow everything becomes a matter of preventing any sort of unlicensed gun ownership:

“According to Sonny Björk at the Stockholm county police, the cooperation is necessary. But he also feels the law needs to change to get at the growing smuggling.

“We have to up the sentencing guidelines for illicit weapons ownership so it doesn’t become appealing carrying a firearm. Today you gladly accept a prison sentence for the advantage of owning a firearm, Sonny Björk says.”

One thing you can count on never hearing in the public debate is criticism of the gun laws in place here. There is lamentation over that big crazy country in the west, however, where the people own all of these guns. In an editorial in Sydsvenskan shortly after Seung-Hui Cho shot up Virginia Tech, Lennart Pehrson expresses his grievances over what he believes is essentially unrestricted gun ownership in the USA. Sweden is also the country where the infamous Michael Moore is hailed as a truth-teller and a hero, where the state-TV is always keen on showing his documentaries repeatedly, and with Bowling for Columbine being one of the movies promoted on its web page.

Hammarberg then warns about Swedish style gun control laws coming to the shores of America.  There are various commentaries asserting the need for ratification of the coming U.S. arms control treaty, some of them simply indignant and insulting.  But here is a fact that none of the advocates of the U.S. arms treaty will admit.  In order to interdict illegal arms sales and control proliferation of arms into second and third world countries, they do not need for the U.S. government to know the location of and register every serial number for every weapon in the U.S.  It’s simply an unnecessary intrusion into U.S. constitutional protections.  A national register is a possible first step towards confiscation, and the U.N. doesn’t actually need any other information or controls in the U.S. to accomplish their stated goals.  The U.S. is not the problem.

Confiscation.  Could such a think happen?  Would such a thing happen?  Well, it’s important to realize where we are.  The lower courts have piled on the SCOTUS for failure to explain the extent to which ownership of a firearm is legal and constitutional beyond the confines of one’s domicile.  According to the lower courts, all the decisions in Heller and McDonald accomplished was to justify ownership of a weapon within your own home, not outside the home – not anywhere – not anytime – not for any reason whatsoever.

And these decisions passed by a bare 5-4 vote.  Note.  Four justices on the U.S. Supreme Court (and that tally will probably hold with Kagan’s history of disrespect for the second amendment) do not even believe that U.S. citizens have a right to own a weapon within their own home.  Within their own home.

We truly are one vote away from loss of the second amendment.  No further intrusions by the U.N. are needed.  The U.N. should concern itself with … oh, I don’t know … underwater basket weaving or something to occupy its time so that it won’t be a hazard to the balance of the world.

Bill Keller wants to get down and dirty into the weeds of the candidate’s faith.  I’ll let you read his list of questions if you want, but of particular interest to me was this one posed to Michele Bachmann.

You have said that watching the film series “How Should We Then Live?” by the evangelist Francis Schaeffer was a life-altering event for you. That series stresses the “inerrancy” ­— the literal truth — of the Bible. Do you believe the Bible consists of literal truths, or that it is to be taken more metaphorically?

Good grief.  Keller isn’t educated enough even to pose the question the right way.  As he has posed it he blunders into the fallacy of the false dilemma.  Let’s see if I can help out.  Any thinking Christian has to answer Keller’s question, yes and yes.  It is both-and, not either-or.

The Bible contains simile, metaphor (which is extended simile), allegory, data and facts, parables (Jesus taught us in stories), wisdom literature (Psalms and Proverbs, Song of Solomon) and so on and so forth.  Different rules of hermeneutics must be followed based on the kind of literature.  Isaiah 46:9-10 and Ephesians 1:4-5,11 must be taken quite literally.  The book of Daniel, quite obviously, is comprised of much that has to be taken figuratively.

If Keller is referring to whether one believes in the historicity of miracles, then he should have posed the question specifically that way.  Asking whether one believes in the inerrancy of the Bible is, equally stolid and incomplete.  The Christian doctrine pertains to the infallibility of the autographs.  These kinds of things – hermeneutics, doctrine – are taught in classes usually held in places such as seminaries.  Keller might want to attend one before he tries to play ball in the major league again.  He struck out this time.

But I’m glad that Keller opened up the floor for discussion.  Now it’s my turn.  Mr. Keller is no defender of the second amendment, and the New York Times is usually considered to be the enemy of gun ownership.  Very well.  Here is the set of questions for Keller.

Do you believe in individual gun ownership?  If you don’t, is it based on a belief that mankind is too variable and prone to fits of rage to prevent himself from being a danger to those around him?  Depending upon the answer to this last one, there are two followup questions.  If the answer is yes, then please explain the moral flaw in your character that makes you this way.  If the answer is no, then please explain to us why you would relinquish a tool that could be used to defend your family and loved ones from danger and death if in fact your are not susceptible to this moral flaw (also explain why this moral flaw affects everyone else but not you).  As a related issue, why would you force others to relinquish these same tools to defend and protect their loved ones unless you were certain that they too suffered from moral flaws.  Finally, if you do not believe in any system of faith at all, please explain your conception of this moral flaw.  What is a moral flaw?

I’m glad that we could have this conversation.  I look forward to your responses.

David Savage with The LA Times:

The 2nd Amendment’s “right to keep and bear arms” is proving to be a right to keep a gun at home, but so far not a right to bear a loaded firearm in public.

The Supreme Court breathed new life into the amendment when it struck down strict handgun bans in Washington and Chicago and spoke of the “inherent right of self-defense.”

But to the dismay of gun rights advocates, judges in recent months have read those decisions narrowly and rejected claims from those who said they had a constitutional right to carry a loaded gun on their person or in their car. Instead, these judges from California to Maryland have said the “core right” to a gun is limited to the home.

Now, the National Rifle Assn. is asking the high court to take up the issue this fall and “correct the widespread misapprehension that the 2nd Amendment’s scope does not extend beyond the home.”

Stephen Halbrook, an NRA lawyer, said “some judges have buried their heads in the sand and have refused to go one step further” than saying there is a right to have a gun at home.

The Brady Center to Prevent Gun Violence hailed the trend and called the high court’s rulings a “hollow victory” for gun enthusiasts. “The gun lobby has tried to expand [the 2nd Amendment] into a broad right to carry any type of gun anywhere. And they have been almost unanimously rejected by the courts,” said Jonathan Lowy, director of legal action. He conceded, however, that “this battle is far from over.”

The uncertainty began with the Supreme Court itself. In 2008, Justice Antonin Scalia said the history of the 2nd Amendment shows it “guarantees the individual right to possess and carry weapons in case of confrontation.” But other parts of his 5-4 opinion stressed there is no right to “carry any weapon in any manner,” and that bans on “carrying concealed weapons were lawful” in the 19th century.

Since then, hundreds of lawsuits have been filed to challenge gun restrictions. In California, federal judges in San Diego and Yolo counties rejected suits from law-abiding gun owners who were denied “concealed carry” permits.

“The 2nd Amendment does not create a fundamental right to carry a concealed weapon in public,” U.S. District Judge Morrison England ruled in May.

“That’s the cutting-edge issue: whether the 2nd Amendment applies outside the home,” said Chuck Michel, an NRA lawyer in Long Beach who has appealed the question to the U.S. 9th Circuit Court of Appeals.

State judges in Illinois, Maryland, Massachusetts and New York have also ruled recently that there is no constitutional right to carry a loaded gun for self-defense. And in Virginia, the U.S. 4th Circuit Court of Appeals upheld the federal conviction of a man who fell asleep in his car near Washington’s Reagan National Airport with a loaded gun.

So what is Savage talking about?  The best summary statement can be found directly in the Petition for Write of Certiorari to the Supreme Court on behalf of Sean Masciandaro.

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. 9 For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

So there are massive problems with Heller and McDonald.  While I am a huge fan of Justice Scalia, he let America down on the issue of gun rights.  Heller was too narrowly decided.  To be sure, there is a second amendment right, and it applies to individuals, personally, and not just in the home, but everywhere else as well.  I see bans on concealed carry, bans on high capacity magazines (e.g., California), bans on firearms based on type or function, bans on carry in places of worship, and so on, in the same category.  They all violate the Second Amendment.

The lower courts’ confusion is simply because they are confused.  The Supreme Court shouldn’t have to spell it out that this extent.  But moderately vague language in the SCOTUS decisions, progressive tendencies among the judiciary, and laziness of the American people to assert their constitutional rights, have led us to the point again where the stolid judges, lawyers, politicians and law enforcement officials everywhere must be told that Americans have a God-given right to self defense, at all times, in all circumstances, and by any means.

Dennis A. Henigan, acting President of the Brady Campaign, waxes breathless in his most recent hysterical rant at Huffington Post.

Remember two summers ago when most Americans were appalled by the sight of guns openly carried by protesters at presidential speaking events and town hall forums on the health care issue? Now it’s not just the protesters bringing guns to political events. Now it may be the candidates themselves.

Texas governor and newly-announced presidential candidate Rick Perry has taken the incendiary mixture of guns and politics to a new level. When it comes to carrying concealed weapons, Perry certainly walks the walk. He has a concealed carry permit and proudly says that he carries a gun when he is out jogging.

Briefly commenting at this point, I’ll observe that I don’t ever recall in my entire life being appalled at the sight of weapons being carried by anyone, at any time.  But as for the concealed carry of weapons while jogging, I guess I have to weigh in with Henigan on this one.  I don’t jog.  I do lift weights and engage in open carry while I’m walking my dog.  But continuing:

Perry recently was asked if he is armed while campaigning. He didn’t respond by saying the question is ridiculous. He didn’t say that in the close quarters of a rope line, with a multitude of people pulling and tugging at him, a gun could easily drop to the ground or be taken from him. He didn’t say that an armed candidate would be a nightmare for the Secret Service. He didn’t say any of those things. Instead, he smiled and refused to say whether or not he carried while campaigning. He added, “That’s why it’s called concealed.”

Rick Perry apparently doesn’t think the question is ridiculous. In fact, his sarcasm suggests he has no objection to political candidates carrying guns to campaign events; he seems to imply that he may do so himself. One thing is clear. The governor has been so thoroughly marinated in pro-gun ideology that he is unashamed about taking it to its logical extreme. If it is true that more guns in public places make us safer, why shouldn’t political candidates carry guns? Isn’t it the least they can do for their own safety?

Something tells me that Perry wouldn’t be ashamed of taking gun ownership to its logical end, whether Henigan wants to call that “extreme” or not.  But Henigan is getting increasingly worked up and hysterical over things, and he eventually drops this bomb.

Yes, it is a good thing that senators can’t carry guns onto the Senate floor because the presence of guns, even carried by well-meaning, law-abiding citizens, increases the risk that arguments and conflicts will escalate to lethal violence. It is the same reason that our national parks are less safe because (due to legislation sponsored by Senator Coburn himself) concealed carry of weapons is now permitted within their borders.

There you have it.  There in a nut shell is the Faustian bargain that gun control advocates are willing to make.  They don’t really believe that an individual cannot protect him or herself or family with a weapon.  They don’t really believe that an individual is less safe with a weapon, regardless of what they might claim.  What they believe is that there is a greater good to be served, and that greater good lies in not allowing provocations to escalate into deadly incidents.  It’s their solution to original sin.  Allow weapons and violence escalates.  Remove weapons and utopia flourishes.

But even here, Henigan cannot help but spuriously link an article that does nothing more than report that weapons are now legal in national parks.  He claims that our national parks are less safe than they were because of this new latitude.  And the article has nothing to do with this claim.

Oh, but he has no evidence.  In fact, I do.  Several months ago I completed a FOIA request to the national parks service, and they returned to me an Excel spreadsheet with crimes outlined by type and delineated per year in the national parks.

11-409 Smith NPS&USPP LE CRIME REPORT 1995-2010

It doesn’t show what Henigan wants it to.  In fact, our national parks are not less safe than they were prior to 2010 when firearms were made legal.  And I did research most of the homicides (through local news accounts) and they mostly have to do with situation-specific (and sometimes bizarre) incidents involving individuals who had no right to carry a firearms anywhere because they were convicted felons, or prisoners on the run, or other such exigencies.  Not one incident that I researched had to do with an otherwise law-abiding citizen who suddenly went berserk because he had a gun in a national park.

Myths die hard.  They are usually built on lies, and Henigan and the Brady Campaign freely traffics in them.  Something as simple as a FOIA request can usually dispel silly myths like this one, and yet we know of at least one instance in which a man’s life was saved from a bear attack because of the new rule in national parks.  He used a .45 handgun to drive the bear away.  I’ll side with the new rule and gun ownership any day.

Remember the Canton, Ohio, police officer who went berserk over a concealed carry issue, threatening to “blast” a guy “in the mouth” and caving in his “Goddamn head?”  Remember the background?  Bigmouth police officer (Daniel Harless) wouldn’t allow the citizen to get the words out that he had a concealed carry weapon.

Well, the president of the Canton city council recently went on a rant over concealed carry.  Listen below.

Oh my.  Guns.  In high crime areas.  Sounds like a recipe for disaster as Councilman Schulman says.  We can’t have armed citizens running around in high crime areas.  To be sure, Councilman Schulman supports hunters, but that idea of an armed population (you know, as found in the constitution) is to blame for the danger we face.  Guns cannot possibly help any of us to be safer.

I’ll give the Councilman one thing though.  He has a special dislike for Rugers at 0130 hours.  Okay, I’ll compromise.  I promise to never carry a Ruger at 0130 hours.  I’ll carry something else if I happen to be out at that time (not likely), but it’ll never be a Ruger.  Maybe that will help assuage the Councilman’s anger over this.

The Daily Caller quotes a staffer for Congressman Darrell Issa as saying that the Gunrunner investigation points much higher than acting director Kenneth Melson.

Even if Melson resigns, Issa spokesman Frederick Hill said the Committee expects to find much more and continue with investigations. “The investigations are far from over,” Hill told TheDC. “It’s quite certain that Kenneth Melson was not the principal architect of this plan nor was he the only high-ranking official who knew about and authorized this operation.”

As I have pointed out before, their own documents say that the White House knew about the strategy.  So this goes higher than even the Department of’ Justice.  That’s why it isn’t for Kenneth Melson simply to resign.  A special prosecutor is needed to get to the bottom (and top) of this crime.  There is apparently pushback from Melson, who believes he has done nothing wrong.  But it isn’t okay for the ATF to violate the National Firearms Act or the Arms Export Control Act if I must live within its stipulations.

And while we’re focused on this issue, the unrepentent Obama administration is busy going from bad to worse.  Andrew Traver, Obama’s pick to head the ATF, is scheduled to meet with Justice this week.  The NRA strongly opposes the appointment of Traver, and for good reason.  He is associated with the leftist Joyce Foundation’s Study, Taking a Stand: Reducing Gun Violence in our Communities.  Among other ridiculous things, they advocated that the Centers for Disease Control take a role in the regulation of the firearms industry.

This administration sees this as an opportunity to slip in their man at the ATF, and it’s time to gear up for the next anti-firearms battle that Obama wants to wage.

UPDATE #1: The NYT has done their expected puff piece shilling for Senator Feinstein, et. al.

If Congressional Republicans are really intent on getting to the bottom of an ill-conceived sting operation along the border by the Bureau of Alcohol, Tobacco, Firearms and Explosives, they should call President Felipe Calderón of Mexico as an expert witness.

Mr. Calderón has the data showing that the tens of thousands of weapons seized from the Mexican drug cartels in the last four years mostly came from the United States. Three out of five of those guns were battlefield weapons that were outlawed here until the assault weapons ban was allowed to lapse in 2004. To help him stop the bloody mayhem, he is pleading with Washington to re-enact the ban and impose other needed controls.

Such horrible analysis work!  They are propagating the 90% myth, just as did the St. Petersburg Times.  And just like Bono.  That’s what happens when opinion gets in the way of facts.  But at least the NYT has more people on staff than Bono to cipher the data, and so while Bono might be just responding emotionally, the NYT is showing how shoddy and lazy they have become in their analysis.

Prior:

Replacing Kenneth Melson At ATF Is Not Enough

The Deepening Project Gunrunner Scandal

Senators Feinstein, Schumer and Whitehouse on Halting U.S. Firearms Trafficking to Mexico

Project Gunrunner: White House and DoJ Knowledge and Oversight

According to the WSJ, acting director Kenneth Melson’s head may be on the chopping block over the AFT gunrunner scandal.

The Justice Department is expected to oust the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to people familiar with the matter, amid a troubled federal antitrafficking operation that has grown into the agency’s biggest scandal in nearly two decades.

Moves toward the replacement of Kenneth Melson, acting ATF director since April 2009, could begin next week, although the precise sequence of events remains to be decided, these people said.

The shakeup shows the extent of the political damage caused by the gun-trafficking operation called Fast and Furious, which used tactics that allowed suspected smugglers to buy large numbers of firearms. Growing controversy over the program has paralyzed a long-beleaguered agency buffeted by partisan battles. The ATF has been without a Senate-confirmed director since 2006, with both the Bush and Obama administrations unable to overcome opposition from gun-rights groups to win approval of nominees.

In November, President Barack Obama nominated Andrew Traver, the head of the ATF’s Chicago office, as permanent ATF director. The nomination stalled in the Senate after the National Rifle Association said Mr. Traver had a “demonstrated hostility” to the rights of gun owners.

Mr. Traver is set to travel to Washington on Tuesday to meet with Attorney General Eric Holder and Deputy Attorney General James Cole, the people said. The administration is weighing whether to name Mr. Traver as acting director or choose another interim chief while awaiting Senate action on his nomination, they said.

The administration is attempting to handle three issues with one move.  First, the Obama administration is attempting to salvage what it can from the horribly failed project gunrunner and throw out a sacrificial lamb to the Congress.  We all know this.  Second, they are attempting to conduct another battlefield ruse.  This is merely a flanking action designed to help stop the Congressional frontal assault on the administration and justice department.  The WSJ article quotes Jim Carney again denying that Mr. Obama knew anything about the project.  But there is indication that there was understanding and approval not only from the justice department but also from the White House.  How high does the knowledge go?  Who knew about this in the White House, and when did s/he know it?  A special prosecutor is needed to flesh out these details.  It simply isn’t acceptable to throw Kenneth Melson under the bus and walk away from this.  Accountability must start at the very top and go to the very bottom of the chain of command on this.

Third – and perhaps more significant than any of these goals – the administration sees this as a timely opportunity to slip in Andrew Traver to the ATF.  Andrew Traver’s views are extreme, and he even wants the Centers for Disease Control to have oversight of the firearms industry.  If the administration cannot get what they wanted out of gunrunner, they intend to install someone else even more anti-firearm than Melson at the head of ATF.  Not only is there no repentance for sins committed, there isn’t even the hint of an attempt to change.  Several dead ATF agents and Mexican authorities, Melson thrown under the bus, a Congressional investigation, international embarrassment, and firearms flooding Mexico from this whole ugly affair – they are all just a few “broken eggs” for real change this administration intends to bring.

Prior:

The Deepening Project Gunrunner Scandal

Senators Feinstein, Schumer and Whitehouse on Halting U.S. Firearms Trafficking to Mexico

Project Gunrunner: White House and DoJ Knowledge and Oversight

Background

We all know about Project Gunrunner, as it is formally called by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).  We also know about the scandal it has been and is steadily becoming, with Congressional hearings pending and the bureau still stonewalling and using delaying tactics over Congressional inquiries.  We don’t know yet what will come of the hearings, but the BATFE and administration support troops have tipped their hand concerning their strategy.

Senators Dianne Feinstein, Charles Schumer and Sheldon Whitehouse have issued a report entitled Halting U.S. Firearms Trafficking to Mexico.  Within a few days of releasing this study, The Washington Post and CNN parroted the talking points in respective articles.  The study itself is as remarkable for the misrepresentation of the facts concerning firearms trafficking to Mexico as it is for its recommendations for statutory remedies.

Analysis & Commentary

Before discussing the Feinstein recommendations it’s necessary to rehearse the demolition that Scott Stewart at STRATFOR performed of the myth that 90% of the weapons seized in Mexico were of American origin.

For several years now, STRATFOR has been closely watching developments in Mexico that relate to what we consider the three wars being waged there. Those three wars are the war between the various drug cartels, the war between the government and the cartels, and the war being waged against citizens and businesses by criminals.

In addition to watching tactical developments of the cartel wars on the ground and studying the dynamics of the conflict among the various warring factions, we have also been paying close attention to the ways that both the Mexican and U.S. governments have reacted to these developments. Perhaps one of the most interesting aspects to watch has been the way in which the Mexican government has tried to deflect responsibility for the cartel wars away from itself and onto the United States. According to the Mexican government, the cartel wars are not a result of corruption in Mexico or of economic and societal dynamics that leave many Mexicans marginalized and desperate to find a way to make a living. Instead, the cartel wars are due to the insatiable American appetite for narcotics and the endless stream of guns that flows from the United States into Mexico and that results in Mexican violence.

Interestingly, the part of this argument pertaining to guns has been adopted by many politicians and government officials in the United States in recent years. It has now become quite common to hear U.S. officials confidently assert that 90 percent of the weapons used by the Mexican drug cartels come from the United States. However, a close examination of the dynamics of the cartel wars in Mexico — and of how the oft-echoed 90 percent number was reached — clearly demonstrates that the number is more political rhetoric than empirical fact.

As we discussed in a previous analysis, the 90 percent number was derived from a June 2009 U.S. Government Accountability Office (GAO) report to Congress on U.S. efforts to combat arms trafficking to Mexico (see external link).

According to the GAO report, some 30,000 firearms were seized from criminals by Mexican authorities in 2008. Of these 30,000 firearms, information pertaining to 7,200 of them (24 percent) was submitted to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for tracing. Of these 7,200 guns, only about 4,000 could be traced by the ATF, and of these 4,000, some 3,480 (87 percent) were shown to have come from the United States.

This means that the 87 percent figure relates to the number of weapons submitted by the Mexican government to the ATF that could be successfully traced and not from the total number of weapons seized by Mexican authorities or even from the total number of weapons submitted to the ATF for tracing. In fact, the 3,480 guns positively traced to the United States equals less than 12 percent of the total arms seized in Mexico in 2008 and less than 48 percent of all those submitted by the Mexican government to the ATF for tracing. This means that almost 90 percent of the guns seized in Mexico in 2008 were not traced back to the United States.

The most recent data that Feinstein cites, given to her by the BATFE, makes the same observation of the data, and that, by acting director Kenneth Melson.

There are no United States Government sources that maintain any record of the total number of criminal firearms seized in Mexico.  ATF reports relate only to firearms recovered in Mexico that were subsequently traced by ATF based upon firearms identifiers submitted to ATF by the Mexican government.  The Mexican government does not submit every recorded firearm to ATF for tracing …

Which point therefore makes the conclusions one can draw from the data very limited.  But that’s not how the Feinstein report paints the picture.  Right in the background statement, we read that “In a June 2009 report, the Government Accountability Office stated that around 87% of firearms seized by Mexican authorities and traced over the previous five years originated in the United States.”  The Washington Post was quick to pick up on the deconstructed meme, saying that “Of the 29,284 firearms recovered by authorities in Mexico in 2009 and 2010, 20,504 came from the United States, according to figures provided to the senators by the Bureau of Alcohol, Tobacco, Firearms and Explosives.”  This is clearly not factually correct, as many more firearms were seized by the Mexican authorities than 29,284.

In testimony to the dictum that if you repeat a lie enough times it will eventually be taken as truth, the 90% myth is now mainstream, and I have called out The St. Petersburg Times for relying on the myth for their editorials (with no response).  Senators Feinstein, Schumer and Whitehouse must be relying on the same dictum, because their wish list of increased firearms control measures is so expansive and draconian that it seems ridiculous to have connected all of this to a single effort.  The senators recommend:

1. Closing the so-called gun show loophole in the laws.
2. Redoubling efforts to enforce an import ban on weapons that fall into the category of military style weapons (e.g., with features such as pistol grip, forend grip, rails for tactical lights, high capacity magazines, etc.).  I have previously covered and commented on this ATF effort for shotguns.
3. Reinstating the assault weapons ban.
4. Multiple sales reporting to the federal government.
5. Ratification of the The Inter-American Convention Against the Illicit Manufacturing of and Trafficking of Firearms, Ammunition, Explosives and Other Related Materials (CIFTA).

And the justification for all of this?  Earlier in the report, Feinstein and staff discuss the laudable job that the ATF did with project gunrunner, but lament the fact that it alone cannot curb the trafficking of firearms to Mexico.

And now the loyal troops tip their hands.  To be sure, for a progressive, any increase in the power of government is a good thing.  All societal problems stem from a lack of regulation and oversight, all evil has its solution in more laws.  So the senators (and the administration) want what they can get out of this effort, if anything.  But something in the wind is foul.

With the coming Congressional investigations of project gunrunner and the illegality and inappropriateness of such a program, the administration and its troops see vulnerability.  Senators Feinstein, Schumer and Whitehouse are snipers picking at the advancing Congressional column with enfilade fire.  This effort is likely a decoy, a hastily designed effort to squeeze what they can from the failed gunrunner project, protect their flanks and split the advancing column.

Second amendment advocates must be diligent, and Senator Feinstein’s efforts should be monitored, analyzed and opposed.  But the real purpose of this report and its recommendations is to be a battlefield ruse.  With its lack of substantiation of the data, the lack of a basis for the recommendations, and the lack of analysis of the information, it’s as much of an admission of vulnerability and culpability as it is a last gasp effort to deny second amendment rights to American citizens.

Prior:

Project Gunrunner: White House and DoJ Knowledge and Oversight

Analysis of ATF Study on the Importability of Certain Shotguns

Legislation on High Capacity Magazines

Cost Cutting Ideas for the Federal Government

In what is uncustomary for an opinion and analysis journal like this one, I’m going to come out and flatly say that I don’t fully understand what’s going on behind the scenes.  Mitch McConnel (and other GOP senators) came out against Rand Paul’s amendment to the patriot act renewal.

Adding further confusion for me, the NRA weighed in against the amendment as well.  But expecting a clear outline of the reasoning process behind the NRA’s disagreement, I am treated to this bit of subterfuge.

As often happens with complex issues, NRA’s position on Sen. Rand Paul’s defeated PATRIOT Act amendment is being mis-reported by those who either don’t understand the facts, or prefer their own version of “facts.”

This amendment was rejected by 85 Senators, which included many of the strongest Second Amendment supporters in the U.S. Senate.  Unfortunately, Senator Paul chose not to approach us on this issue before moving ahead. His amendment, which only received 10 votes, was poorly drafted and could have resulted in more problems for gun owners than it attempted to fix. For this reason, the NRA did not take a position on the amendment.

To be more specific about the amendment and its problems, the amendment would have prohibited use of PATRIOT Act legal authority for any “investigation or procurement of firearms records which is not authorized under [the Gun Control Act].” There have been no reports of the current PATRIOT Act being abused with respect to firearms records, however supporters suggested a far-fetched scenario in which every firearms sales record in the country–tens or hundreds of millions of documents dating back to 1968–could be sought.  Again, we nor anyone else is aware of any case in which this authority has been used to abuse gun owners.  (In fact, published reports indicate that few of these orders are ever sought for any reason.)

In particular, the amendment appeared to be aimed at so-called “section 215 letters”–orders from the FBI requiring the disclosure of “tangible things” such as records and documents.

Under the current PATRIOT Act, an application for this type of order with respect to firearms sales records has to be approved no lower than the director or deputy director of the FBI, or the Executive Assistant Director for National Security.  The application is made to a federal judge based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”  The judge has the power to modify the order and must direct the use of “minimization procedures” to protect the privacy of Americans.

If the Paul amendment were adopted, the FBI would have used other ways to access whatever firearms records it might need for intelligence or anti-terrorism investigations. This is especially troublesome for gun owners.

This would result in United States Attorneys simply demanding the same records through grand jury subpoenas, which require no judicial approval before issuance. Fighting a subpoena after the fact can be very costly and carries legal risks of its own, including possible charges for obstruction of justice.

Even worse, the government would have used the Gun Control Act’s provision that allows the Attorney General to “inspect or examine the inventory and records of [a licensee] without … reasonable cause or warrant” during a criminal investigation.  That means by simply characterizing its activities as a “criminal investigation,” it would enter a licensee’s premises and demand these records without “reasonable cause or warrant”–in other words, without judicial oversight of any kind, and without any of the procedural limits imposed by the PATRIOT Act.

Therefore, given all of these potential problems for gun owners, the NRA could not support this poorly drafted amendment.

What?  Come again?  Can someone please try to remove the confusion and contradictions in Chris Cox’s statement for me?  This makes no sense to me.  I’m left to concur with Sean at SayUncle.  “I’m scratching my head on a few points. Can someone give a high level play-by-play on this?”

What did Paul’s amendment do?  Why did Mitch McConnell disagree with it?  Why did the NRA demur?  Were the reasons compelling and persuasive?