January 23, 2008
• Washington D.C. Gunaphobics
Comparisons by “Concealed” 1-22-08:
Washington, D.C. has the most restrictive gun prohibition in American. Their social experiment – criminalizing practitioners of the Second Amendment – since 1976, has proven that draconian anti-gun laws only ensure that bad guys have guns. Texas, by comparison, has one of the most liberal gun rights law in America. Citizens of Washington D.C. are twice as likely to be a victim of violent crime as is a Texan. Disgustingly, out of every 100,000 citizens of D.C., 1370 were victims of violent crime in 2004. Let’s break than down: This means that 1% of its citizenry was a victim of crime in the aforementioned time frame. Conversely, “Gun Happy” Texas had 540 victims of crime out of each 100,000 residents. These are “violent” crime statistics.
In order to really deal with the devilish details, one has to look at murder statistics. Gunaphobic D.C. crosses at the head of the finish line with 36 of every 100,000 citizens dying of murder. Those gun-toten Texans have about 6 in 100,000 perish from murder. In round figures, you and your family, visiting the cradle of justice, stands 6 times greater chance of being murdered than visiting Texas. It’s your choice, America – Gunless D.C. (unless you are a b.g.) or Gun toten Texas. Personally, I think I will stick with Texas. (Data derived from 2004 FBI Crime Statistics.)
January 18, 2008
• Self Defense Shooting and the Aftermath
Thursday, January 04, 2007
Hat Tip: Law Dog
Meditations on aftermat
If you spend any time at all on the various gun forums of the World Wide Web sooner or later the conversation will come around to “What to do after a shoot”.
The advice given by anonymous figures riding the electron waves of the Internet can be … amusing. At best. At worst, some of the advice given will guarantee that the shooter will be hip-deep in legal trouble for the next lifetime.
I will tell you right up front that any comments made by your Humble Scribe are worth exactly what you paid for them.
First off — and I cannot stress this enough — anyone who carries, or owns, a gun or a knife needs to know a lawyer.
First thing tomorrow — or as early as possible — find yourself a lawyer who is familiar with self-defense cases and the weapons laws of your state.
Now, folks. Not at 0-dark-thirty with a critter bleeding out on your carpet and red-and-blue lightbars screaming down the road.
Ask the regulars at your gun range/club who they’d recommend. Use your NRA, GOA, JPFO, KABA, LEAA, or SAF membership services and find out if they can point you at an attorney in your area.
Once you have the name of an attorney, go talk to him (or her). It usually doesn’t cost much — or anything — to introduce yourself, sit in his office and talk about What May Come.
If you like him (or her), get a couple of his cards and put one in your wallet and another under the bedroom phone where you can find them after the bodies quit bouncing.
If you should find it necessary to help a critter into his next incarnation, hopefully you or a family member will have called 911 prior to the Grand Finale — so to speak — and the whole fandango will be recorded. However, if (for whatever reason) it was not possible to call 911 prior to the critter starting his trip to room temperature — please call 911 as soon as possible.
You will note that I don’t have any advice to give as to what you should tell 911 when you call them. Seems like everyone on the Internet has (legal) advice as to what you should tell the 911 operator, how you should say it, how many words to use and how many seconds to spend saying it.
In my experience, when your ears are ringing, the smell of powder and blood and various human secretions are clogging your nose, adrenaline is rampaging up-and-down your spine and a man — critter or not — that you just killed spent his last moments in this life in your presence begging God for another chance, or calling for his mother, or crying in denial and disbelief as he died …
… you are not going to be thinking of what your anonymous Internet buddy told you to say. You’re not even going to remember grabbing the phone, and if you are conscious of your conversation with the 911 people you have my admiration.
So. You have called 911. The very next thing you should do is pull out that lawyer’s card and call him (or her).
I don’t care how justifiable the killing was. I don’t care if you’re in Deepinahearta, Texas and the deceased is laying in the middle of your living room floor with an axe in one hand and a detailed murder list in the other.
Call your lawyer.
Like it or not, guns — and self-defense itself — are political. And District Attorneys are political animals. Trust me, you don’t want to be caught without a lawyer if Mike Nifong’s evil twin Skippy decides to make his political bones with your case.
You have called 911 and you have called your lawyer. Now — probably sooner rather than later — the scene is going to be crawling with cops.
Whatever you do, please, please, please do not greet the police while holding a pistol in your hand. Or a knife, bludgeon, broken bottle, chainsaw or whatever else you used to shove your critter in front of his Eternal Maker.
You, standing over a dead man, with a weapon in your paw when the cops show up is a recipe for an unpleasantness. Trust me on this one.
Again, there are thousands of folks on the Internet, each one with advice on what to do with your pistol, knife, or whathaveyou.
And — again — if you have the presence of mind to do something complicated with your gun, I salute you. But I doubt it.
Just remember not to have the weapon in your hand, on your body or with-in arms reach when you get face-to-face with the police. The officers are going to take custody of whatever you used to chlorinate the gene pool, and when they do — tell them where it is, but, please God, don’t go grab it yourself to give to them.
Last, but certainly not least, if there is any subject in which every-single-body on the Internet has advice for, it’s what to tell the cops about your shooting.
Folks, what you should or should not tell the cops is based completely upon the unique circumstances of your personal incident.
I can tell you that it’s never a Bad Thing to not make a statement to the police before your lawyer is present, but let’s talk Real Life here:
You have just ended the life of some mother’s child. You may have stared into the eyes of this person as the life drained out of them. You may have listened to the death rattle as they took their last breath. You may have heard this person’s last words, or you may have simply watched them kick until they were still.
Whichever, you have just breached the most sacred of Man’s taboos. You have done something that cannot be taken back, and you have done the single most powerful, awful thing one human being may do to another.
In addition, you’re going to be so jazzed on adrenaline that your teeth will hurt. Endorphins will mask any pain — and failing to find pain, they will be tweaking your inhibitions in 23 different directions. Your mind will have played tricks on you — sounds will have gone squirrelly; time will have done wierd things.
And worst of all, you probably won’t remember entire sequences of what just happened. Self-doubt is going to jump on your back like an 800-pound gorilla with cold feet and clammy hands.
And you will want someone — anyone — to understand that you were forced to do this terrible act. You will want someone — anyone — to know, to understand, that you had no choice in breaking the ancient taboo against killing.
Ladies and gentlemen, in the average self-defense shooting, it’s not getting the shooter to talk to us that’s hard — it’s getting him to shut up that’s difficult.
I can tell you to assert your right to have an attorney present during any interview with the police, but in the last 13 years of police work, I’ve never seen a justified Average Joe self-defense shooter who was capable of doing so.
Again, you may be different. I salute you if you are, but — again — I wouldn’t bet anything important that you won’t be like everyone else I’ve seen in that position.
So — my advice to you is to sit down with your attorney before the Fit Hits The Shan and discuss what your attorney wants you to do in that situation. Find out what your attorney wants you to tell the police, and try to stick with that.
Don’t be surprised if you find yourself unable to stop talking, though. Prepare for it, and you will probably be able to limit any damage done.
LawDog
January 14, 2008
• Concealed Scrutinizes Clement’s Amicus Brief
1-14-08 Concealed reviews Solicitor General’s Amicus Brief regarding D.C. v. Heller.*****
Paul Clement, the Solicitor General of the United States, filed an Amicus Brief on 1-11-08 agreeing with the basic proposition of the D.C. Court of Appeals, that the Second Amendment protects an individuals right to keep and bear arms.
Dr. John C. Eastman. Professor of Law, Chapman University School of Law, sees this as “an extraordinary first step,” because the court in United States v. Miller, 307 U.S. 174 (1939), obliquely suggested that the right existed only in a governmental context.
This is the most “critical” part of the Justice Department’s brief and did support the individual right aspect on the Second Amendment. The inherent problem becomes apparent when determining whether or not there are limits on the individual and if so, how are the limits applied.
“Concealed” maintains there are limits on these rights and just as free speech is limited (No yelling fire in a theater) so are individual gun rights. We take the opinion that citizens with criminal backgrounds or psychiatric conditions, should not be allowed to have firearms. We also believe that the age old standard of “malo animo: with evil intent” is another acceptable standard for determining application.
Dr. Eastman calls this “rational basis review.” This is a lower level of scrutiny, unlike strict scrutiny. Rational Basis Review permits a broader range of regulations.
Dr. Eastman suggests that the Solicitor General may have been better off letting the later point (rational basis review) be determined at another point in time. He submits that the D.C. gun prohibition was so blatantly un-constitutional; that the Solicitor General would have been much better served concentrating on the constitutionality issue and avoiding the Pandora’s Box of rational basis review.
“Concealed” 1-14-08
January 12, 2008
• Bush Administration Flips on D.C. Gun Prohibition
The Bush Justice Department joined the other 20 jurisdictions in filing amicus briefs in support of the 1976 D.C. absolute prohibition on guns. Concealed is very disappointed with this move and continues to show how out-of-step the Bush Administration is with Americans on other issues such as immigration and spiraling government growth. “Concealed”
____________________________________________________________
Justice Dept. Critical Of Appellate Ruling On D.C. Handgun Ban
By Robert Barnes
Washington Post Staff Writer
Saturday, January 12, 2008; Page A03
The Bush administration told the Supreme Court last night that, although the Second Amendment protects an individual’s right to own firearms, an appeals court used the wrong standards in declaring the D.C. handgun ban unconstitutional.
The District’s ban may well violate the Second Amendment, U.S. Solicitor General Paul D. Clement said in a brief filed ahead of a court deadline, but the case should be sent back to lower courts for evaluation under a “more flexible standard of review.”
The federal government, protective of its own gun control measures, took issue with the 2 to 1 decision of the U.S. Court of Appeals for the District of Columbia Circuit, which said because handguns are “arms” under the provisions of the Second Amendment, an outright ban is unconstitutional.
“The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of ‘Arms’ that can be traced back to the Founding era,” the government argued. “If adopted by this court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns.”
The administration’s call for more judicial review — a disposition that could continue legal wrangling over the ban until after President Bush leaves office — was far short of an endorsement of the 1976 gun law. Still, it was more than lawyers for the District had hoped for.
Peter Nickles, the District’s acting attorney general, called the brief a “somewhat surprising and very favorable development.”
Washington lawyer Walter E. Dellinger, who has been retained to argue the city’s case before the court, added: “While there is a great deal in the solicitor general’s opinion with which we disagree, I am gratified they recognize the Court of Appeals erred in striking down the District’s law without considering whether it was reasonable to ban a type of weapon — handguns — which can be concealed and carried into schools, office buildings and subways.”
Even though Clement’s brief said it is not filed in support of either side, it “is basically siding with the District of Columbia,” said Alan Gura, an attorney for the District residents challenging the law. “The idea that the court somehow got this wrong is absurd.”
It has been 70 years since the Supreme Court has taken a case that presented it with a clear review of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Its odd punctuation and phrasing has led to years of debate about exactly what guarantees it bestows.
Most appeals courts have held it to mean that there is a collective, civic right to gun ownership related to a military purpose. But last spring the D.C. appeals court said that it conveys an individual right to gun ownership.
The Bush administration reaffirmed its long-held support of that position in its brief. But it added that, “like other constitutional rights, that individual right is subject to reasonable restrictions.”
The District’s highly restrictive law, the brief said, bans “a commonly used and commonly possessed firearm in a way that has no grounding in the Framing-era practice.” It should be subject to heightened judicial scrutiny, the government added, but the appeals court was wrong to declare the law unconstitutional “just because it takes a categorical approach” in banning handguns.
The brief was among nearly 20 filed yesterday, the last day for friend-of-the-court briefs either supporting the District government or taking no position on the law.
Gura and other attorneys for the D.C. residents have until next month to file a brief telling the high court why the appellate decision should be upheld. The case is still unscheduled but will likely be heard in March and a decision should be issued before the court adjourns in June.
January 11, 2008
• Frevalous D.C. Suit Tossed
ASSAULT WEAPONS
Federal Law Negates D.C.’s Suit Against Gunmakers, Judge Rules
By Henri E. Cauvin
Washington Post Staff Writer
Tuesday, May 23, 2006; Page B04
A lawsuit in the District against gunmakers was dismissed yesterday by a D.C. Superior Court judge who ruled that the suit was precisely the sort of claim that a new federal law was intended to block.
In a 37-page opinion, Judge Brook Hedge wrote that the city and the federal government had two competing policies, and only one could prevail.
The D.C. Council, she wrote, had determined that assault weapons have “little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors.” Congress, however, “has trumped local law by passing legislation to protect the profits of such manufacturers,” she wrote.
The suit, filed by the city and by victims of gun violence and their families, aimed to hold gun manufacturers liable for the flow of firearms into the District and for the carnage created by the sale of illegal weapons.
Under D.C. law, only law enforcement officers are authorized to carry firearms in the District. But gun violence is a chronic problem in the city, nourished by a steady supply of weapons from Maryland, Virginia, North Carolina and other states with more relaxed gun laws.
District of Columbia v. Beretta U.S.A. Corp ., filed in 2000, was an attempt to address the situation. The plaintiffs faced formidable challenges in the courts and on Capitol Hill, and an act of Congress last year appears to have sealed the fate of the lawsuit and others like it.
The Protection of Lawful Commerce in Arms Act, signed by President Bush in October after winning easy House and Senate approval, enacted broad liability protections for the country’s gun industry.
Gun-control advocates blame gunmakers for loose distribution systems that have allowed criminals easy access to assault weapons. Local governments have sued to force changes in the way guns are sold and repayment for police work and medical costs associated with treating victims, particularly those shot by high-powered weapons.
Gunmakers and trade groups say the industry has been made a scapegoat for lax law enforcement and the actions of criminals.
The suit filed by the District and gun violence victims was among the most aggressive of many such suits filed across the country. As with many of those suits, it claimed that the manufacturers create a public nuisance with their products and were conducting business with little regard for the risks their products created.
But the D.C. suit went a step further, arguing that under a 1990 District law, the manufacturer, dealer or importer of an assault weapon or machine gun can be held liable for damages arising from an injury or death that results from the discharge of a firearm in the District.
In 2002, D.C. Superior Court Judge Cheryl M. Long threw out the lawsuit, rejecting the nuisance and negligence claims and concluding that a 1990 statute, the Assault Weapon Manufacturing Strict Liability Act, was unconstitutional.
In 2004, a three-judge panel of the D.C. Court of Appeals upheld much of Long’s ruling but said the city could sue under the strict liability statute. In April 2005, the full Court of Appeals upheld that ruling, sending the case back to Superior Court.
After the new liability protections for the gun industry were enacted in 2005, manufacturers petitioned Superior Court to dismiss the suit. The plaintiffs countered that their suit met an exception in the new federal law and that the law was unconstitutional in any event.
Hedge rejected those legal arguments.
“The Court is faced with a classic tension between two elected branches of different governments, two equally clear legislative judgments, but each enforcing opposite policies,” Hedge wrote.
“At bottom,” she said, the federal law was enacted “to prohibit the very types of lawsuits the Strict Liability Act allows.”
And unless she was persuaded that the federal law was unconstitutional — which she was not — the federal law would prevail, she wrote.
The D.C. attorney general’s office and Wilmer Hale, the firm that is the lead counsel for the plaintiffs, said yesterday that they are weighing whether to appeal the ruling to the D.C. Court of Appeals.
Concealed 