Thursday, December 6, 2018

1946 NRA Gun Safety Video

As David Yamane says in his Tweet, "...How much better is this than the culture war fighting NRATV?...". Indeed, a few more of these videos, updated, would do more to promote NRA credibility than taking a match to the NY Times or a sledge to a TV set. So courtesy of the NRA, albeit the 1946 NRA, here is a genuinely useful and non-partisan video:

Monday, October 29, 2018

Do we need a Human Reliability Program for (Certain Kinds of) Gun Ownership?

Barely have we gotten out of the news cycle of the Florida mail-bomber than an extremist, anti-Semite in Pittsburgh shot up a synagogue, killing eleven and injuring four police officers in a firefight before being captured. Robert Bowers apparently left a trail of evidence of his extreme views on social media (and hints of acting out) but unfortunately, the First Amendment protects most of this garbage, as well as social media's right to act as a toxic mind pollutant to the American psyche.

But all this has a price when one also has a stockpile of guns or bombs, as per Bowers and Cesar Sayoc. Perhaps we in the firearms community need to admit, belatedly, that the 2A has two clauses and the first one mandates that the people who universally populate the "well regulated militia" with arms in their hands need to be vetted to make sure they are pointing guns at legitimate adversaries rather than figments of their warped imaginations. How far should we go in the name of preventing these demented clowns from shooting up the nation? That, as usual, is the question.

In accordance with 18 PA C.S. §6109, a sheriff may deny an individual the right to a License to Carry Firearms if there is reason to believe that the character and reputation of the individual are such that they would be likely to act in a manner dangerous to public safety. PA State Police web page.

Bowers apparently left a trail of hate on the Internet. Should we be monitoring the Internet and serving people who sound like they are about to go violently off the rails with Extreme Risk Protective Orders? Should owning certain classes of small arms be contingent on something like a Human Reliability Program? I think its clear that as long as anyone can procure a firearm easily, there is a clear statistical probability that some will go off the rails at other people's expense and the more lethal the firearm, the more the expense. Especially nowdays with politicians, Russian troll farms, and social media activists pouring on political gasoline and handing out matches. What can go wrong?

One could imagine something like a violence triangle as we do a fire triangle. One needs motive, means, and a decision to act, i.e., a defective mental circuit breaker, to go batshit crazy and shoot up a mosque, synagogue, church, school, or whatever your personal choice of imaginary enemy happens to be on a given day. Means plus motive without the mental circuit breaker almost guarantees some "fires" will start. One can remove the means, albeit with some difficulty in a nation with a Second Amendment. One can try to eliminate motive, but in an age of toxic social media, gutter politics, and tribalism, its tough to do that. Mental circuit breakers seem to be in short supply. I was waiting in line for an Rx on Saturday and some other customer simply went off on the poor lady behind the counter, berating her loudly enough for the whole store to notice. Several of us were contemplating the possibility of having to tackle the guy if it got much worse but he stormed off.

So how about this? As Mike Weisser has said, some hunting rifles and shotguns (and probably certain kinds of handguns) are rarely implicated in crimes or mass shootings. How about we go lightly on these lower public risk firearms but examine those guns which seem to beckon for misuse and raise the standards for ownership of some firearms?

To be qualified for the job that I once held for fifteen years in a Federal lab, I had to undergo annual background screening, including a sit down with a company shrink, to ensure that the public and fellow workers could trust that I would not go off the rails at everyone else's expense. Maybe its about time we designed a scaled down version of that sort of process for those who want to own high cap Glocks, ARs, and similar weaponry that can turn a synagogue into a charnel house in a few short minutes. I wouldn't make it prohibitive or expensive, just clear and fair to the gun nuts and the public at large. With fewer mass shootings, such a system should pay for itself, actually, even if Matt DeLisi's numbers are a little hard to believe.

Any takers?

Suggested reading: David Brooks, The New Cold War.

Sunday, August 19, 2018

Santa Fe County vs State Constitution Preemption Clause

Stay tuned.
Communications Coordinator Kristine Mihelcic
Santa Fe County, NM

Dear Ms. Mihelcic

Good morning.

Over the weekend I sent the following email to the Sheriff and the County attorney. This morning I spoke to Ms. Gurule in the attorney's office. She said my message had been forwarded to a county attorney but if I wanted a response, I would have to contact the county manager. So I am contacting you.

My question remains. I am concerned that the firearms part of ordinance 2001-1 as posted on the Rail Trail is, in my understanding, in conflict with the state's preemption clause. Is the county enforcing this provision? Has anyone considered this question?

I would appreciate some guidance on this matter.

thank you,

Khal Spencer
Santa Fe

-------- Original Message --------
Subject: Santa Fe County Ordinance 2001-1 and the New Mexico State Constitution Preemption clause
Date: 2018-08-12 14:37

Dear Sheriff Garcia or County Attorney's Office (Robin Gurule):

I'm not sure of whom to ask this, but the sign on the trailhead said to call the Sheriff with questions or concerns. So here goes, and I'll copy the county attorney as well.

Today I was riding my bicycle out to the Santa Fe Rail Trail for a ride to Lamy and got to the trailhead south of Rabbit road where the Rail Trail becomes unpaved. I saw a large sign at the trailhead fence that said no firearms allowed. It referenced County Ordinance 2015-6.

On returning home, I looked up 2015-6 which has nothing about firearms but refers back to Ordinance 2001-1, which says in part:

"...It shall be unlawful to carry or discharge into any County park, trail, or open space area firearms or projectile weapons or explosives of any kind..."

But the New Mexico State Constitution says in Article II, Sec 6 "No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms."

I understand that the county can ban the discharge of a weapon due to safety considerations but was surprised about being able to ban mere possession on a trail because that seems to conflict with the state constitution's preemption clause. So the bottom line, I suppose, is to ask you whether that ordinance is being enforced, whether there is a loophole in preemption clause of the state Constitution allowing firearms prohibition in parks or on trails, or if no one has asked the question yet? Since I am not a lawyer, I have no idea of the answers to any of those questions.

Sunday, July 29, 2018

Can (or Should) a State Try to Ban Virtual Guns?


At what temperature
 do Internet files burn?


 "States do not have the power to censor speech or commerce in other states, especially when that commerce is licensed by the federal government." --Defense Distributed and the Second Amendment Foundation v Gubir Greywal and Michael Feuer.

"...When it comes to molding public opinion, nobody on either side ever concerns themselves with narratives based on facts..." --Mike the Gun Guy, aka Michael Weisser

Gun controllers and blue state law enforcement officials are trying to block the publication of additive manufacturing gun code. But gun designs, whether on paper or on the Internet, are not real guns. There is no domestic "gun code control law" at the Federal level; the Federal rule that for several years blocked Defense Distributed was ITAR, which controls the export of defense technology. I don't think states or cities can regulate ideas based on legal theory whipped up out of whole cloth but which are based on the notion of prior restraint unless the situation narrowly fits the bill for prior restraint. Further, in spite of the whipped up hyperbole, including panic by some in law enforcement, there is no immediate public danger overriding 1A protections, since no one has demonstrated that 3D guns are being used in crimes (not to mention, proved that reliable "AM", or additively manufactured, guns can be made in Joe's Garage.) This has got to stop, or at least pause, as cooler, technological and legal heads weigh in.

This issue goes back a few years.  Defense Distributed owner Cody Wilson has been involved in a protracted legal action with the United States regarding his publishing of code allowing someone to print an AM gun using a 3D printer. The original object of the fight, a handgun called the Liberator was a cumbersome and functionally primitive design and hardly a threat to national security. Sure, the technology will eventually get better and it's the technology which is a concern. The Feds asserted that Wilson's posting of AM plans amounted to an export of technology and therefore regulated under ITAR, the regulations used to control the export of arms, presumably for military purposes. This gambit is to keep the technology as well as the weapons out of the "wrong hands", so to speak. Ingenious malefactors can make guns out of the most primitive stuff, as the Vietcong did during our war in Southeast Asia, but there is no point to helping them do a better job of it.

Recently, however, Uncle Sam settled out of court with Wilson, agreeing that he could post the plans for guns and gun parts not deemed directly suitable for military purposes. The ears in Gun Nut Nation perked up when this rule excluded civilian versions of modern military rifles from the ITAR prohibited list. These so-called AR's are often referred to as "weapons of war" by the Anti-Gun Nut Crowd. Well, Uncle Sam is now on record as saying these are not weapons of war. I suppose close only counts in horse shoes and hand grenades. Be that as it may...

When the Feds relented on Wilson's demands to publish, several gun control organizations immediately went to court to stop him from posting AM gun design code. In a decision made last week, a Federal court in Texas denied the gun controller's request for an injunction. Meanwhile, Attorney General Grewal of New Jersey and city attorney Feuer in Los Angeles threatened DD with legal action if it goes online with the data.

In the latest legal volley and return (note added later, this was before the latest Federal injunction in this fast moving story), DD and its lawyers, with the Second Amendment Foundation, are suing Greywal and Feuer for infringing on DD's 1A and 2A rights and asserting that since Uncle Sam issued a license to publish, a state or city has no jurisdiction to override Federal arms regulations and ITAR. The Reason link has a direct link to the lawsuit in case anyone wants to read what the suit actually says. I'm not a lawyer so anything I say might be off target, but Alan Gura (the winning attorney in District of Columbia v Heller) and Josh Blackman are pretty keen ones.

Your average crook can do far better than a Liberator without buying a 3D printer and further, you cannot make an entire, credible AR with a common, 3-D printer that uses plastic ink. Cody Wilson printed the AR lower, not the entire gun; much of the gun is of traditional manufacturing and furthermore, the first few failed miserably.  I don't think a virtual gun, i.e., the design code, is the same as an actual gun and I think people have the right, as Uncle Sam now agrees, to have a virtual gun just as we have the right to any other concepts other than those explicitly restricted by law, i.e., information controlled by lawful authority of government (for example, the 1954 Atomic Energy Act, 1947 National Security Act, the law behind ITAR, etc). If someone actually makes an illegal gun in New Jersey or Los Angeles, or an already illegal undetectable gun, that's a different story and is within the purview of local or state government to regulate, consistent with established law. Virtual guns, or notions of guns, should be off the regulatory table other than via legitimate rulemaking such as ITAR.

I think this is a virtual fear rather than a real one and Mike Weisser seems to agree.There is no clear and present danger here to justify clearing the very high Constitutional bar against imposing prior restraint. What we are seeing is just a lot of additively manufactured panic.

"...What I hope all of this illustrates is that making a 3D printed gun is not easy, it is not quick, it is not cheap and it does not result in especially dangerous or deadly weapons. Not only is it cheaper to just buy a real gun in the United States, but it is also probably a lot faster to go buy one, even with any state-mandated waiting periods. ..."

Stay tuned.

note: I used Reason and Guns since they published a lot of this and it was easy to find links.

Hey, is there room for a 3D printer along side those drums?


Monday, June 18, 2018

To the Santa Fe New Mexican: My View on Gun Violence Prevention

Note that to get this under 500 words, a lot was left out. A few added comments here.

1. I don't like the idea of piling more laws on people but gun culture has changed. More households owned guns when I was young but we didn't have this "me too" movement of mass shootings. Plus, to borrow an analysis from Wake Forest University's David Yamane, Gun Culture 1.0 was about gunsport and hunting. Gun Culture 2.0 is about self defense, i.e., shooting people. I think that transition has encouraged a violent outlook. So if we can't figure out how to keep people from going off the rails in today's culture, we need to interdict them so they derail without taking out their schools, churches, or government buildings. Hence the need for ERPOs and watching for the Deadly Signs of Becoming Armed and Stupid.

2. The culture driving shootings is controlled by social mores (such as social media), drug violence, poverty driven crime, domestic violence, and suicidal urges in a nation where social darwinism has replaced social cohesion. The transfer of firearms from the legitimate to the illegitimate market is inevitable in a nation with 1.2 guns for every person, but we need to make it harder to transition to that illegitimate market.

3. Today's polarizing politics encourages us to see each other as not belonging to the same culture, to say nothing of the same nation. We stop taking each other's advice and instead, bury ourselves in our political bubbles. That really explains a lot about what currently amounts to the gun non-debate. To say its not about the guns but about the people has a lot of truth to it, but clever sayings don't solve the problem. I think educational and social services, drug law reform, and economic justice are far more important than gun control but the left refuses to relent on gun control and the right has abandoned the social safety net. What can possibly go wrong?

Now, on to what was sent to the New Mexican.

To reduce gun violence, we need to find consensus solutions. Consensus is hard on such a polarized topic. Some suggestions follow.

Stop trying to ban guns. Bans on so-called assault rifles fly in the face of a half century of legal ownership. Millions are out there but they make up a very minor portion of shootings.  The lion's share of shootings, including multiple shootings, are committed with handguns. “ARs” are responsible for some high profile carnage, but we can increase public safety well short of a ban.

We can require higher standards of ownership for modern, military style rifles or concealable handguns that put the public at greater risk. This could be done through progressive licensing and screening, as we presently do for automatic weapons or to screen motorists before letting them hop from a subcompact car to behind the wheel of a Mack Truck. Rules should be clear, fair and not subject to arbitrary and capricious subjective interpretations. A lower bar should be set for owning low capacity firearms or handguns more at home in the woods. Storage requirements should reflect risk, such as if children are in a home.

Once we decide on categories of firearms with respect to risk, we can issue firearm owners ID cards (FOID) with a nationally-agreed on set of criteria for reciprocity.  Each gun owner would have an ID card, similar to a driver's license, that would allow the person to own and carry some or all categories of guns, openly or concealed, depending on the permit. Of course this means red and blue states have to compromise on the reciprocity criteria but in return, we could stop worrying about gun running between states with different levels of restrictions.

In such a system, private sales would be done by entering data into a computerized National Instant Background Check-like system with FOID card numbers, PINs, a gun serial number and gun description. An exchange could be approved remotely between previously cleared people based on their level of screening for the class of weapon exchanged.

Finally, stop moving the goalposts. The biggest, and often enough, legitimate fear that gun owners have is that the rules are too fluid and often the changes can be bewilderingly stupid. Want examples? Start with California or New Jersey, states that change their gun laws faster than most of us change our socks.

The Second Amendment provides an individual right for a public purpose, i.e., that “the people” could be called to arms in order to defend the nation and to prevent the unwarranted amassing of too much coercive power by government. The Supreme Court’s Heller decision explicitly recognized in the 2A an individual right to have a functional weapon for personal self-defense. The historical reasoning behind the 2A implies some standards need to be met among the people and imposes limitations on the power of government to regulate arms. There is a lot of middle ground that can be explored if we stop demanding all or nothing solutions.

Khalil J. Spencer
Santa Fe, NM

Sunday, June 3, 2018

A Modest Proposal Sure to Piss Everyone Off

6/4/18 Draft.

At the rate the GVP discussion is going, 
we are getting nowhere fast
As we continue to accomplish very little with regards to solving the problem of gun violence, I have a modest proposal. Well, maybe not so modest. But what the hell.

First. Stop trying to ban categories of guns such as ARs that have long been in circulation, since that creates a battle royal and since most of these guns are owned with little real risk to society in proportion to the political battle that would ensure if we try to ban them.  The lion's share of shootings, including multiple shootings, are done with handguns. ARs are a convenient political target for the left as a symbol of what they see as America's Gun Problem.

But as a hedge, and as I suggested in 2015 and as Mike Weisser suggested about a week ago, we can, if necessary to keep Junior from mowing down his school or place of work, modify the 1934 National Firearms Act to regulate ARs and some handguns, i.e., arms more lethal than garden variety hunting rifles, shotguns, and some large unconcealable handguns, in some manner between machine guns and Dad's Remington 1100. That doesn't mean people can't have exotic guns or, "modern sporting rifles", or whatever you want to call stuff. It just means it will be a little harder to own more lethal guns, there will be a little more screening, and not every bozo who walks into a gun shop can come out armed to the teeth with his Man Card intact. How we decide what would fall into this category should be decided carefully so we don't run afoul of Heller or intractable political issues. As a point of discussion, how about if owning "modern sporting rifles" and/or being able to carry concealed require a common, higher level of screening than traditional low capacity firearms and hefty handguns more at home in the woods. A "basic" firearms owners identification card (FOID) could be had by anyone who scores 100% on a Form 4473 and one could upgrade if the spirit moved one.
this was stupid

Secondly, stop trying to keep people from owning guns if they have not proven that they should be disqualified. Once we decide on categories of firearms, how about national reciprocity with ownership? Or at minimum, a state-issued FOID card with national reciprocity? Make it shall-issue after jumping through reasonable hoops.  Each gun owner would have an ID card, similar to a driver's license, that would allow some or all categories of guns to be owned, openly or concealed, analogous to a license that allows individuals to drive just cars vs allowing the person to drive cars, motorcycles, eighteen wheelers, etc. Of course this means red and blue states have to compromise on M.Q.'s but in return, we could stop talking about gun running from so called weak law to strong law states and I could plink at tin cans with my old man's hand cannons in NYS without fear of being chased down by Andrew Cuomo. State level sensitivities such as not carrying in government buildings could be preserved. What a concept.

Background checks? Easy.  Private sales/transfers between owners would be done by entering a computerized NICS-like system with a pair of FOID numbers, PINs, a gun serial number and description and presto, a private exchange is done between previously cleared people based on their level of screening. You want to be screened to own an M-60 for shits and grins or sell one to your buddy who is equally screened? Sure, why not? Right now there are hundreds of thousands of legally owned machine guns. They are never in the news because you have to be pretty squeaky clean to own one.  Just show you are responsible for the damn thing and God bless ya.  Just make sure you can afford the ammo.

Finally, stop moving the goalposts and messing with people who have never crossed paths with the law. The biggest, and often enough legitimate fear that gun owners have is that the rules are too fluid and often the changes are bewilderingly stupid. Want examples? Start with California. These situations make Molon Labe an understandable, if not a legally defensible response. Plus, these situations result in single issue politics at the polls, which doesn't help the bigger issue of running the country.  The recent editorial by Santa Fe Mayor Webber, i.e., that he would attempt to circumvent the state constitution's preemption clause, is yet another example of why gun owners are wary of trusting government. Sure did bug me that this showed up in the Santa Fe New Mexican three months after I moved here. No, I didn't get a call from Mr. Mayor as a "responsible gun owner", either.

I think we need to do more to keep guns under control, i.e, from being diverted from the legal to the illegal side of the house and to ensure the irresponsible dofus and clearly identified legal loose cannon is not sending rounds whizzing past my hair do. That means some controls on ownership (i.e., theft prevention and periodic cross-referencing with court records) and transfer (to ensure you don't sell that semiauto to someone about to blow away his wife after she got a restraining order against her slap-happy hubby). But if the laws are designed to control transfer  and reward lawful ownership rather than prevent ownership by good people (i.e., California et al), maybe we can get past the impasse.

The 2A was written so that a citizen militia (of whoever passed for a citizen back then) could be called on to defend the state and/or nation and to try to prevent the unwarranted amassing of power by a government that no longer represents its people. UCLA Law Professor Adam Winkler covered that pretty well in Gunfight and there have been numerous papers written about the evolution of arms and self defense in England and America. Heller's contribution was explicitly including in the 2A the right to have a usable weapon for self defense in the home. The historical reasoning behind the 2A implies some standards need to be met among the people. For one, it would be wise if we don't elect assholes who we might genuinely worry about as far as usurping excessive power (hence the ballot box and high school diploma with an A in rhetoric and civics are far more powerful tools than the sword) and two, that we know the limits of being armed and therefore, know muzzle from breech as well as the law of self defense. No American who has thought carefully about the often-used Jefferson quote about watering the tree of liberty with the blood of patriots and tyrants wants to live in an Anbar Province, no matter how pissed off he gets at Big Gubbmint. Any doubts? Read the history of the Civil War.

Fix the country with a saw and hammer, not with a match and gasoline.

Sunday, May 27, 2018

On Guns, Santa Fe Gun Owners Need to Be Heard


Santa Fe Mayor Alan Webber put a column into the Sunday New Mexican in light of the Santa Fe TX school shooting lamenting the lack of state gun control efforts. Mr Mayor stated that if the city can't regulate guns due to the NM Constitution's preemption clause, it will try to regulate magazines, ammo, and potentially take other actions if the city's lawyers think they can get away with regulating firearm use short of regulating guns. I think any attempt to circumvent the state constitution will further polarize the gun violence debate, and should be avoided.

Note this tactic was explored by the city once before, in 2013, and fortunately died a quick death as it most likely violates the state constitution's preemption clause. We are once again caught between the liberal version of regulating guns in general, especially trying to eliminate those guns that liberals find offensive, and trying to keep guns out of the wrong hands, whichever hands happen to be turning rogue.

I find it interesting that Mayor Webber put the usual Progressive language about ridding the community of assault weapons and big magazines into the context of the Santa Fe, TX shooting. That shooting was done with a garden variety shotgun and revolver, i.e., that shooting, unlike some others, had nothing to do with high capacity magazines or "black rifles". Black rifles are not necessarily the problem. Any gun in the wrong hands is the problem. But that's somewhat beside the point of the city ignoring the state constitution.

Article II, § 6 of the Constitution of New Mexico provides:
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.
 Italics mine. Now one can suggest that ammo, or a magazine, is not a gun, but a gun without ammo or a magazine is not much more than a blued steel paperweight. Ammo, magazines, etc, are "incident" of the right to keep and bear arms since they are part of the overall package. But of course I am no lawyer.

 Having recently moved to the City Different, I would resent becoming a criminal merely by having signed a change of address form. I would likewise hate to have to sign on to an injunction to prevent an ordinance from taking effect and see my own tax dollars drained down a black hole fighting a constitutionally problematic ordinance in court rather than seeing our tax dollars directed at preventing a shooting. Hopefully, the city attorneys will not go down this rabbit hole. If the gun violence prevention folks want to get rid of preemption, it is by amending the state constitution, which from my read, is absurdly easy. One might think of that if the other side of the political fence tries the same game some day on some other hot button issue such as abortion.

The Mayor blamed the NRA for that preemption clause. While the NRA may have "swept into the state" in 1986 in support of said clause, it was added to the constitution not by the NRA, which is not a registered voter, but by the voters of New Mexico. The whole state of New Mexico is not a Progressive paradise: it is a mix of urban, rural, conservative, moderate, and liberal people. Animal rights activists and pig hunters. Vegans and venison connoisseurs. Gun haters and black rifle tinkerers. Plus, its not just the NRA that sweeps in to mess with our gun laws.  When Everytown for Gun Safety "swept into the state" in 2016 carrying a pre-written background check bill and a large wad of cash to pass around to key legislators and liberal black money organizations, their bill failed because it was ridiculously overbroad and was rejected by the Legislature. I worked on it, trying to help Stephanie Garcia-Richards cobble together a bill that had more support, but since I was not a lobbyist with a checkbook, my opinion did not much matter, although a moderated bill emerged a little too late to move forward. In fact, the NRA was out-spent and outnumbered by Mr. Bloomberg's lobbyists on that one. The one NRA lobbyist who was in the state thought my efforts were, to put it charitably, lost in the maelstrom.

Sometimes, although not necessarily in a deep red or deep blue location, consensus matters. So rather than treating gun owners like the enemy and playing fast and loose with the constitution, perhaps the City Different should find points of agreement with the firearms community. I don't think anyone here, and that includes gun owners, wants to see our schools shot up . Laws directed at actual problems, such as CAP laws to keep Junior out of the family arsenal unless supervised, tax breaks on gun safes, background checks for private sales to anyone you don't know well, well written ERPO laws, violence intervention, holding parents accountable for their kids (such as knowing if your kids are planning a mass shooting or piling up arms and explosives), engaged parenting so that kids don't go down the rabbit hole of toxic social media while having access to firearms, free gun safety training, and other efforts that don't violate the Constitution, many of which require state bills, aren't even being discussed by the City.

Yes, Mr. Mayor, if this proceeds as you have written, some of us will most likely not get out of the way. For better or worse, gun ownership (as in that "guns and bibles" quote) is part of the American fabric. I still hope there is a way to deal with gun misuse without resort to more political gasoline and matches from either side.  I would prefer both sides find common ground, which seems to be the opposite of what the nation is experiencing. Maybe we can be the "city different" with regards to gun violence prevention and find some of that elusive common ground. Maybe.

New York Magazine: No "epidemic" of school shootings.
Northeastern Univ.: School shootings, 1990's-present.