Saturday, March 31, 2007

Oregon Supreme Court Affirms "No Duty to Retreat"

The Castle Doctrine has gotten a lot of attention in recent weeks. It’s the radical idea that when faced with a threat to one’s life in one’s own home, that you have “no duty to retreat”. Many states had laws on the books that stated, or Court opinions that had ruled, that a citizen first had the “duty to retreat” when faced with deadly force. In recent months these laws and decisions have come under increasing pressure.

Florida passed a law specifically stating that a citizen had no duty to retreat, and Texas has recently followed suit. Critics call these “shoot to kill” bills, but the right of self defense has been spelled out in many state Constitutions.

Oregon has gone another route, while there have been several bills introduced in the State Legislature to bring the Castle Doctrine to Oregon, none have made it very far. However, the Oregon Supreme Court recently made the point moot when they ruled that existing Oregon law did not include a “duty to retreat”:

In their decision, State of Oregon v. Sandoval, the Supreme Court correctly notes that Oregon law contains no requirement to retreat from an attacker and that previous rulings to the contrary are not only incorrect, but obviously so,

The Court noted "On a purely textual level, ORS 161.219 contains no specific reference to "retreat", "escape," or "other means of avoiding" a deadly confrontation. Neither, in our view, does it contain any other wording that would suggest a duty of that kind."

It went on to describe a previous Supreme Court ruling this way: "The court's analysis did not focus on or even consider the words of the statutes that we now recognize to be pivotal." and "We conclude, in short, that the legislature's intent is clear on the face of ORS 161.219: The legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another."

The Supreme Court points out "Indeed, the entire analytical flow of the Charles opinion is distinctly odd: The court did not examine the wording of either ORS 161.209 or 161.219 at all... Instead, the court set out the wording that the Oregon Criminal Law Commission had proposed to the legislature regarding the use of deadly force as part of the final draft of the proposed 1971 Criminal Code, which wording explicitly imposed a duty of retreat to avoid the necessity of using deadly force. Then, after noting that the 1971 legislature had rejected that wording, the court cited a view expressed in the Oregon Criminal Law Commission's Commentary to the 1971 Code to the effect that "the statute probably was not necessary" because of existing Oregon case law.."

This ruling is completely consistent with the Oregon Constitution Section 27:

"Section 27. Right to bear arms; military subordinate to civil power. The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power"

It's encouracing to see so many recent Court cases truly look at the law and respective Constitutions as opposed to the justices making it up as they go along!

Until next time!

Friday, March 30, 2007

Brady Campaign “Aghast”

I’m on the Brady Campaign’s mailing list – I figure the best way to know what the other side is up to is to subscribe to their newsletter. So it came as no surprise when a response to the recent D.C. Gun Ban case (see entry from earlier this month) came across the wire. Honestly the response is pretty much exactly what I expected from the Brady Campaign, and it has a real tenor of desperation.

For today’s blog I figured I’d go through the letter from the Brady Campaign and point out the numerous errors they continue to perpetuate:

"I'm simply aghast!

"In a 2-1 decision in Parker v. District of Columbia, right-wing activist judges on a Federal Appeals Court recently overturned Washington D.C.'s long-standing restrictions on handguns based on their twisted view of the 2nd Amendment to the U.S. Constitution while ignoring more than 60 years of precedent — a decision that endangers America's gun laws coast-to-coast."


Oh my, talking about a loaded paragraph. Let’s examine the claims made by the Brady Campaign in this paragraph one by one to better understand where they’re coming from.

First the play the activist judge card. The term “activist judge” has come to many any judge who rules in a way you don’t agree with in modern political parlance. However, there is a historical precedent for judicial activism. Wikipedia has a fairly good definition of judicial activism:

"Judicial Activism is a term used by political scholars to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law. Formally, judicial activism is considered the opposite of judicial restraint, but it is also used pejoratively to denote judges who are perceived to endorse a particular agenda. Although alleged activism may occur in many ways, the most debated cases involve courts exercising judicial review to strike down statutes as unconstitutional. Views about constitutional interpretation abound, ranging from strict constructionism to the living constitution, and therefore, in practice, any controversial decision striking down a statute may be labeled by the decision's critics as judicial activism."

Granted, in the case in question a law was declared unconstitutional, but for me the question comes down to WHY the law was declared unconstitutional. If the law was declared unconstitutional because of a radical new interpretation of the Second Amendment, then I think you could make a case for “judicial activism”. If, however, the law was declared unconstitutional based on historical precedent or Founders intent, then this is NOT a case of “judicial activism”, but rather the Court performing its duty as a part of the system of checks and balances built into our government.

Since the question of whether this was an “activist” decision boils down to what model of Constitutional interpretation is used, we need to move a little further along the quote. Note that the Brady campaign talks about “60 years of precedent” in their message. Read that again – 60 years. Unless I’m mistaken, the Bill of Rights came out of a compromise between the Federalists and Anti-Federalists in 1789. The Second Amendment was debated heavily at that time. Why does the Brady Campaign not therefore discuss over 200 years of legal precedent???

The answer is simple – because they know that their interpretation is the "activist" one. It is based on nothing more than an ambiguous decision made about a specific shotgun which was tried 70 years ago in absentia. The Brady Campaign rails against the “individual right” interpretation of the Second Amendment. However even a cursory examination of the Constitutional debates, the letters and papers of the Founders, and early commentaries bears out the hypothesis that the Second Amendment was meant to affirm (not bestow!) an “individual right”, and perhaps the key individual right.

The main reason the Founders had a fairly unified view on personal firearm ownership as they saw an armed populace as the first and best line of defense against tyranny – such as the tyranny resulting from a central government with a standing army. Noah Webster wrote:

"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

Blackstone noted in his commentaries:

"The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government."

Tucker’s commentaries on Blackstone reach the same conclusion:

"The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty. "

The Founders have made their views on individual firearm ownership quite clear in other letters and documents as well:

Thomas Jefferson spoke at length on the right to bear arms:

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to John Cartwright, 1824. ME 16:45

"One loves to possess arms, though they hope never to have occasion for them." --Thomas Jefferson to George Washington, 1796. ME 9:341

"I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house." --Thomas Jefferson to Jacob J. Brown, 1808. ME 11:432

"No freeman shall be debarred the use of arms (within his own lands or tenements)." --Thomas Jefferson: Draft Virginia Constitution (with his note added), 1776. Papers 1:353

"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important." --Thomas Jefferson to -----, 1803. ME 10:365

Madison’s first draft of the Second Amendment was:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well-regulated militia being the best security to a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Note the individual right appears first in this draft – move “the right of the People” to later in the Amendment does not alter the individual right affirmed by the Amendment.

So I’m therefore forced to conclude that the Court’s interpretation of the Second Amendment in this case is neither “activist” nor is it “twisted”. It rather represents the prevailing view of the Amendment as held by it’s AUTHORS!

The Brady Campaign cites three goals for your continued contributions:

"Convene well-recognized experts in constitutional law and history to develop the most powerful arguments against the Parker ruling;

"Assemble a comprehensive library of books, treatises, articles, court decisions and legal briefs refuting the "individual rights" view of the Second Amendment and make this library available to lawyers nationwide and on the Internet; and

"Launch a major public education campaign including full-page ads in major newspapers and a new Brady Gun Law Defense Fund website. We'll also organize lawyers and law professors to write newspaper op-eds and letters to the editor to create a constant drumbeat of criticism of this decision."


Given the preponderance of information above, and the well annotated citations to rulings applicable to the case cited in the D.C. case decision, I find it hard to believe that the Brady Campaign will find any real refutation to the “individual rights” view of the Second Amendment – at least with respect to American law.

I’m sure they will find individuals eager to mis-interpret the Second Amendment in what ever way will pay the bills, but I ask you gentle reader, if “the people” in the Second Amendment to the Constitution doesn’t affirm an individual right, then what good is the Bill of Rights? What happens then to our freedom of religion? What happens to freedom of speech? What happens to freedom of the press?

The Brady Campaign has started down a very slippery slope – the end result of their journey, if successful, would be a complete gutting of the Bill of Rights. If you value your freedom, don’t be fooled by this latest PR campaign. Realize what is truly at stake.

Until next time.

Tuesday, March 27, 2007

H.R. 1022 Still Alive in Committee

The latest attempt to re-institute the 1994 “Assault Weapon Ban” is in committee with 33 co-sponsors. This bill in many ways is worse than the ’94 bill because it has a wider list of firearms receiving a new, and inaccurate, definition.

While gun control advocates seem to believe that arbitrarily banning certain classes of firearms is “common sense” and vital to public safety, the facts speak otherwise. According to this article in the Washington Times “an independent study commissioned by the National Institute of Justice (NIJ)...” stated:

"’We cannot clearly credit the ban with any of the nation's recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence,’ said the unreleased NIJ report, written by Christopher Koper, a professor at the University of Pennsylvania.”

“The report also noted that assault weapons were ‘rarely used in gun crimes even before the ban.’"


So one really has to ask WHY so many people are figuratively (as they’re clearly not literally) “up in arms” about certain forms of semi-automatic firearms.

Remember to write your representative on this one.

FYI, here’s a copy of my letter to my Congressional Representative:

I am writing today in regards to bill H.R. 1022, “To reauthorize the assault weapons ban, and for other purposes”. I have watched with dismay as this bill was proposed, referred to committee, has picked up many co-sponsors, and now is potentially headed for a full vote on the floor of the House of Representatives.

At its core, this bill represents nothing more than misguided attempt to stop crime through the limitation of the firearm ownership rights of ordinary American citizens, rights that are allegedly protected by the Second Amendment to the U.S. Constitution. I strongly urge you to speak out against this piece of legislation, and vote against it on the floor of the House of Representatives.

Beyond the obvious Constitutional issues, H.R.1022 is based on numerous flawed premises. First, the weapons it seeks to ban are not “assault weapons”. An assault weapon is a firearm capable of both semi-automatic and FULLY automatic fire. True “assault weapons” are already covered by existing regulations. This bill specifically concerns semi-automatic firearms only. I am therefore forced to conclude that either the bill’s authors and sponsors are ignorant of that basic fact and are therefore unqualified to propose such legislation, or are deliberately misusing the term to obfuscate the issue for other political purposes.

The stated purpose of most gun control legislation is to reduce crime and violence, yet time and again it has been demonstrated that firearm bans in of themselves have no direct impact on the overall crime rate. Municipalities with the strictest gun control laws have the highest murder rates while those with concealed carry laws have the lowest. Furthermore, the weapons covered by this bill are used infrequently in crimes, and the fact that they are receiving such focused attention by the legislature seems to be not only a waste of time, but smacks of an agenda unrelated to the reduction of crime and violence.

If you look carefully at the text of this bill, it attempts to ban virtually every semi-automatic firearm in common use for both hunting and sporting purposes in the United States. This particular piece of legislation would also ban the M1 Carbine (3.a.30.A.xi) – a semi-automatic firearm developed during the Second World War and distributed to American Citizens by the United States Federal Government under the Civilian Marksmanship Program (CMP) and its predecessor the DCM. I find it unconscionable that members of the Congress of the United States would seek to outlaw a rifle provided by our government to its citizens to encourage responsible firearm use.

In conclusion, I strongly urge you to defeat bill H.R. 1022, “To reauthorize the assault weapons ban, and for other purposes”. The proposed legislation would do absolutely nothing to deter violent crime, and would merely serve to prohibit the ownership of weapons already held by law-abiding American citizens. I will be tracking the progress of this bill closely and your vote on this particular piece of legislation will factor heavily in my vote in the 2008 election.

Until next time!

Monday, March 26, 2007

M1 Garand for Shifty Powers

Sometimes you read a story that restores your faith in humanity – and I had the privilege of reading just such a story this weekend. I’m a member of the Garand Collectors Association, and they send out a magazine to the membership. There was an excellent story in this past issue.

Those of you familiar with the HBO miniseries Band of Brothers , based on the Stephen Ambrose book of the same name, will immediately recognize the name Daryl “Shifty” Powers. For those of you not familiar with Shifty or Band of Brothers, please crawl out from under your rock and check out the series on DVD!

Shifty was considered to be the best shot in Easy Company with the M1 Garand, and he approached a WW2 re-enactor about buying his rifle – instead, with the help of the Civilian Marksmanship Program, they built him a rifle matching Shifty’s service rifle in World War II – even down to the last 3 digits of the serial number.

Read more here:

http://www.odcmp.org/1006/default.asp?page=SHIFTY_RIFLE

If you’re interested in buying your own M1 Garand – or M1 Carbine for that matter, check out the CMP home page!

Until later!

Tuesday, March 20, 2007

Maryland Assault Weapon Ban Dead in Committee

The Maryland Senate sub-committee reviewing the proposed AWB deadlocked in a 5-5 vote which means this bill will not come to a vote on the Senate floor. This effectively kills the measure for the year:

http://www.baltimoresun.com/news/local/bal-md.assault16mar16,0,3818418.story?coll=bal-local-headlines

According to the article:

"Two Baltimore County Democrats - Sens. Norman K. Stone and James Brochin - joined three Republicans on the committee to kill the bill.

"'The only people we target in this bill are law-abiding citizens who use these guns for target shooting or competitions,'" Brochin said."


That’s at least partially correct – other uses of the weapons on the list (which was extensive) include self-defense and hunting. At least Mr. Brochin understands that the 2nd Amendment covers more than hunting – a common misconception these days! I also find it particularly encouraging that opposition to ineffectual and unconstitutional gun control laws is becoming bi-partisan with members of both parties voting against this legislation.

Friday, March 16, 2007

Oregon - Range "Shut Down" Bill Goes to Ginny Burdick's Committee

Alert for everyone in Oregon. Oregon Senate Bill 1012, the upside of which would shut down virtually every Shooting Range in the state, is headed to Ginny Burdick's committee at this point. Thanks go out to the Oregon Firearms Federation for the heads up:

http://oregonfirearms.org/alertspage/03.16.07alert.html

Here's the full text of the bill:

http://www.leg.state.or.us/07reg/measures/sb1000.dir/sb1012.intro.html

One of the more onerous clauses:

d) All firearms or other weapons that are brought onto the premises of the shooting range are recorded in a log book. The rangemaster shall cause to be recorded at least the following information:
(A) The make and model of the weapon;
(B) The caliber of the weapon;
(C) The name and address of the person bringing the weapon onto the premises; and
(D) The date and time that the weapon is brought onto the premises.

Wonder what the future plans for those log books are???

Remember to write your representative on this one:

http://www.leg.state.or.us/writelegsltr/

I've already written mine! Oregon Firearms Federation had a suggested text that I expanded on just a bit in my letter:

I am writing today concerning Senate Bill 1012. This particular bill is extreme, unneeded and unwise. Everyone agrees that firearms safety is essential, and shooting ranges in Oregon have an admirable safety record. That record alone raises serious questions in my mind regarding the need for additional legislation in the first place. A reading of this bill confirms my fears that SB 1012 is not designed with safety in mind; it is rather designed to add regulations and strictures so onerous that they would effectively close virtually every range in the state. I urge you in the strongest terms to oppose this draconian and dangerous legislation.

Thursday, March 15, 2007

Boomstick Roundup

Just wanted to share a few things I've come across in the last day or so. First, the "Ten Manliest Firearms":

http://www.arthurshall.com/x_2007_manly_firearms.shtml

Darn funny take on firearms, but a darn good list as well. Your's truly owns examples of #10, #9, #7, #6, #4, and #2... though I honestly think the M1 Garand should have made the list somewhere - maybe ahead of the SMLE. I mean, this is the rifle that PATTON called "the greatest battle implement ever devised" - for it not to make the Top Ten seems odd to me.

Speaking of "Manly Firearms", Ian Fleming's Colt Python .357 Magnum revolver will be auctioned off at Bonhams:

http://www.bonhams.com/cgi-bin/public.sh/pubweb/publicSite.r?sContinent=EUR&screen=HeadlineDetails&iHeadlineNo=2607

The bad news, as this is Britain with some of the most ridiculous anti-gun laws in the world:

"At the request of the vendor Lot 61 is being offered in its original working condition and ownership without the proper authority is only allowed following De-Activation according to the Home Office guidelines and certification from the London Proof House. Please note that there are specific Import / Export regulations relating to firearms which vary according to the country of destination."

Yes please, England, let's destroy another piece of history (albeit recent) to "keep us all safe".

Estimated selling price is between £10,000-£15,000 - please let an AMERICAN buy this???

Until next time...

Wednesday, March 14, 2007

Rifle of the Week – The Japanese Type 99

The Type 99 Rifle was the Japan’s standard infantry weapon during World War II. It was first developed in 1939 and developed to replace the aging Type 38 rifle - but it never completely supplanted the Type 38 in the field. One of the primary benefits of the Type 99 was that it fired a higher caliber projectile than the Type 38. The Type 38 was a 6.5mm weapon whereas the standard by the outbreak of World War II was around 0.30 caliber (American M1 Garand, British Enfield, Soviet Mosin Nagant). The Type 99 therefore used a 7.7mm bullet (the actual bullet used is a 0.311 modernly, which matches the diameter of a 303 British load).


The Type 99 was made at several arsenals with a total production run of almost 2.5 million rifles. It was produced at an array of arsenals, and the individual series and arsenal marks can be seen here:

http://www.radix.net/~bbrown/japanese_markings.html

At the beginning of the war, the Type 99 was arguably the finest bolt action rifle in action. It boasted a chrome lined barrel (unique for that time) coupled to one of the strongest bolt action mechanisms found on a military firearm (based on post war U.S. Army testing). It had some very unique features (a dust cover over the bolt mechanism, a monopod for stabilization, and a flip sight with side wings to facilitate targeting of aircraft – optimism at its finest!).



As the war progressed, many of the features of the Type 99 were simplified or deleted all together resulting in “substitute Type 99” rifles, some of which appear very crude by the end of the war.

If you’re interested in the Type 99, or Japanese weapons in General, think about joining Banzai:

http://www.gunboards.com/sites/banzai/

No Surprise - MMM Condemns DC Gun Ban Overturn

In a move that I'm sure surprises no one, the DC Chapter of the "Million Mom March" - you know, the organization that marched on Washington in 2000 with ~750,000 for gun control, but only managed to draw 200 the next year - has condemned the recent ruling on the DC gun ban.

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/03-12-2007/0004544359&EDATE=

The MMM states:

"The court's decision deprives residents of the District the basic right of self determination in determining their own public safety laws," said Million Mom March President Ladd Everitt. "This is 'judicial activism' at its absolute worst."

I hate to tell them, but all laws are subject to judicial review - and only laws that are consistent with the Constitution are upheld.

They also allege "judicial activism". "Judicial activism" is a term typically used to describe rulings by a Court that effectively create new laws - or provide a radically new interpretation of legal precedent. In this case, a law has been overturned, not created. Nor is this a radically new interpretation of legal precedent. Even a cursory reading of the history of the Second Amendment demonstrates that this ruling if anything is as pure an interpretation of Founders' Intent as possible. Wikipedia has a very well referenced section on early interpretations of the 2nd Amendment here:

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

The MMM goes on to state in their press release:

"As part of the Brady Campaign to Prevent Gun Violence, the Million Mom March Chapters believe that all Americans have the right to be safe from gun violence in their homes, neighborhoods, schools, and places of work and worship."

While the Constitution is designed to "provide for the common defense" and "promote the general welfare", no where does the Constitution guarantee that its Citizens are going to be "safe". That is a promise that no government, no police force, no army, and no militia can live up to. Personal safety is a product of personal responsibility and self-awareness.

I do, however, note that in the Constitution the people's right to "keep and bear arms shall not be infringed." So it seems to me that the MMM and the Brady Campaign have at best a tenuous grasp on the scope of the Constitution, and the rights affirmed (not granted!) therein.

Tuesday, March 13, 2007

Court Rules DC Gun Ban Unconstitutional

The DC Circuit Court of Appeals has ruled that the DC ban on firearms in the home is unconstitutional. You can read the full text of the decision here:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

In my opinion, this is a very important ruling because it effectively goes back to a more historical interpretation of the 2nd Amendment underscoring that in this context the 2nd Amendment applies to the People just like the 1st Amendment. The ruling also pointed out that the Rights enumerated in the Bill of Rights were not granted by the Constitution, but rather a recognition that these rights pre-dated the Constitution. The summary of the ruling is extremely well written and sums up the major points of their decision:

"To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Anti-federalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

In short this ruling effectively shoots down the belief that the 2nd Amendment applies only to the "militia" or even the "National Guard", but rather is an individual right.

The decision was split 2-1 with Judge Karen Henderson dissenting. She argued that the Second Amendment does not apply to the District of Columbia because it is not a state. Using that logic she also must believe that the people of the District of Columbia also do not have the right to freedom of speech, freedom of assembly, right to petition the government, etc. In my opinion, such judicial recklessness on the part of Judge Karen Henderson is quite disturbing.

The ruling will be appealed, so expect to hear more about this one in the future.