Thursday, May 26, 2022

Use of Deadly Force

 Mas Ayoob has put out a lot of videos with the Wilson Combat Channel. Here are some I suggest for anyone who bought a firearm for self defense during the pandemic. There are many others. Go check out the Wilson Combat Channel, and by all means, subscribe.


The Facts About Stand Your Ground Laws



Saturday, April 30, 2022

Why That Safe Storage Bill Died

 I sent this to the Albuquerque Journal after D'Val Westphal seemed interested, but it seems to have been dropped down the newspaper's memory hole. Anyway, I'll post it here.

Why did HB 9 fail?

HB-9, the safe firearm storage bill, failed in large part because there was the classic disconnect between rural and urban interests. If such a bill is ever to pass, these parties need to find common ground, recognizing that urban youth violence is a serious problem while protecting legitimate youth firearm activities.

Minors have some legitimate reasons to access firearms.  For example, hunting, informal target shooting, 4H, or any number of organized shooting activities.  Perhaps the bill could have gotten far more buy in if an explicit addition was made to recognize that minors have legitimate reasons, other than armed defense, to be accessing rifles and shotguns (minors cannot possess handguns on their own under most conditions). The bill could have explicitly stated it is not a crime if a minor fetches from storage, with responsible adult approval and appropriate training, a firearm to be used for a lawful youth activity.

Still, the bill improved as it moved forward. In the original, while safe storage was mandated, no credit was given if a minor defeated a good faith storage system.  The substitute bill provided reasonable legal protections for adults by clarifying how "safe storage" would be credited and also gave credit for training. I testified in favor at the House Judiciary Committee hearing. Still, I understand that rural representatives in the House Appropriations and Finance Committee hearing were concerned the bill would impede lawful and traditional youth firearm activities, something that could have been explicitly solved by a minor re-write as I said in the preceding paragraph.

Finally, outreach is critical. I provide to one sponsor academic literature (Crifasi et al and Rowhani-Rhabar et al, and  here is a RAND review of the literature) asserting that to effectively promote safe storage, we must reach out to and enlist gun owner organizations and police to cooperate with gun violence prevention organizations to reinforce safe gun ownership behaviors and further, we must make safe storage devices readily accessible and affordable. Creating new law alone without active followup may have negligible effect because the folks who most desperately need to hear the message usually are out of the loop unless we reach out to them. Charging adults after kids kill kids misses the point of promoting safe storage before any harm is done.

Saturday, April 2, 2022

Warning to New Mexico Gun Owners: In Spite of Cannabis Legalization, Users of Cannabis Most Likely Remain Prohibited Persons

 Or, If You Shoot, Don't Toke. If You Toke, Don't Shoot...

Note: I am not a lawyer and the following is not legal advice from an attorney. The closest I get to the bar in New Mexico is Beer Creek Brewing Company.

Much is in the news regarding the legalization of cannabis products for recreational as well as medicinal consumption in New Mexico, even on the Governor's official web site. What is curiously missing in all of this hoopla are the legal issues of which there are several important ones for folks in New Mexico, including issues concerning your employment and your Second Amendment rights.

First, your employer may still prohibit you from using cannabis products and may fire you if you fail a drug test or are caught in possession. This includes at least one local national laboratory and likely other agencies that are tied to Federal contracts and grants. Federal law still considers cannabis a Schedule I substance with no legal, legitimate public use. Plus, employers are allowed, as well as mandated, to have policies and procedures related to safety,depending on what the business does. There are a lot of issues regarding employment but the employer is required to ensure employees are informed of the rules of the game.

Secondly, regardless of what New Mexico legalizes, firearm ownership is in part controlled by Federal law. A cannabis user's Second Amendment right to keep and bear arms is in jeopardy. The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, to include any person in several categories, one of which is someone "...who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802)" This list includes "marihuana" and "tetrahydrocannabinols", i.e., cannabis.

Indeed on the National Instant Criminal Background (NICS) check form, ATF 4473, is found question 21(e), "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." So while New Mexico now says you are not "an unlawful user" of cannabis per the language of 18 U.S.C. § 922(g) with regards to state law regarding possession or use of cannabis, Uncle Sam disagrees with regards to a cannabis user's possession or use of firearms per the GCA. Hmmm....maybe this will be litigated more (see below). For now, I think Uncle Sam's opinion is the law but I'm not a Constitutional law scholar and don't play one on TV.

Since cannabis metabolites in your body can result in a positive test for as long as a month, depending on the test, ringing the dope-o-meter should be a concern even if you are not impaired. That is a significant difference from blood alcohol tests. So while you may be perfectly competent to work, drive, or handle a firearm, you can still test positive with serious financial and legal consequences.

For firearms aficionados, simply put, if you attempt to buy a firearm in New Mexico and are a cannabis user, you will likely fail (by Federal standards) or be compelled to lie on the background check form. Lying on the form is in itself a Federal offense. As a cannabis user, even owning or possessing a gun can potentially get you on the wrong side of Federal law (see the Green Light Law Group link below), presumably even if the State authorities look the other way as is the case in at least some Colorado locations. There likely will be some confusion on what shakes out of this, as we can see from Colorado, in this article: "Can you own a gun in Colorado if you smoke pot?" 

"In September 2016, a federal appeals court covering nine western states upheld a ban on firearms sales to residents who hold medical marijuana cards.."


Of course, that was the 9th Circuit, which never saw a gun regulation it didn't approve of, but the Supreme Court denied a petition to appeal the ruling. One can hope for a challenge and a different ruling before our 10th Circuit, which would, I think, be binding here but create a circuit split and possibly compel the SCOTUS to grant certiorari (I'm not a lawyer but I love those big legal words). Don't hold your breath and most of us don't want to volunteer to be that test case.

So the bottom line? Before you head out to the local pot shop, think carefully about these issues. Hopefully, some day, both state and Federal law will be on the same page. The U.S. House just passed a marijuana legalization bill but it faces a rough road in the U.S. Senate. Until the Feds legalize cannabis, caveat emptor.

 More recent stuff here from the Green Light Law Group:  Marijuana Use and Gun Ownership: What You Need to Know (August 2021)

Sunday, February 7, 2021

What is a School, Mayor Keller?

 In George Orwell's fictional totalitarian state of Oceania in his book 1984, Inner Party Member O’Brien is torturing an Outer Party member, Winston Smith, into agreeing to a lie. With Smith strapped to a gurney, O'Brien holds up his left hand, its back towards Smith, with O'Brien's thumb hidden and the four fingers extended.
“How many fingers am I holding up, Winston?’
“Four.”
“And if the Party says that it is not four but five – then how many?”
“Four.”

O'Brien responds by administering another electric shock. 

 Like the Inner Party in Oceania, the Keller Administration is torturing Justice into saying a park or a plaza or any other facility they so desire is a "school". Why? So the city can misuse a good law meant to keep people from bringing guns to schools from bringing guns anywhere else in the city the Mayor so desires. Thankfully, DA Raul Torrez has decided that two plus two is indeed four and refused to prosecute on the basis of such an outrageous misuse of the law. I suspect the average jury, also not Inner Party members, would know the difference between a park and a school as well. 

Oh and to put icing on this rotten cake, the only people cited under this deception were two Black men.

This whole episode reeks of what Orwell called "doublespeak". How many fingers am I holding up, Mayor Keller?

Tuesday, November 3, 2020

Don't Mess With People's Political Signs

 A few days ago someone went around and defaced all the Biden/Harris signs on my street and the Black Lives Matter murals on nearby streets. That is deplorable. Its a Republic and people have the right to support the candidates of their choice and the causes they believe in by posting signs on their property without them being defaced or destroyed. We all get to have opinions.

Well, a couple days after the defacement, I saw this new sign go up. Not that I agree with profanity, but if folks are gonna have a sign war, I guess this is fair game. Maybe some day we can go back to just disagreeing, rather than being disagreeable.


 

Monday, August 17, 2020

Albuqurque City Council Subcommittee Votes to Ask Legislature to Repeal Firearms Law Preemption Clause in the State Constitution

 In an 11 August article in the Albuquerque Journal, it is reported that a subcommittee of the Albuquerque City Council will forward to the full Council a request to ask the Legislature to amend the state constitution to repeal the so-called preemption clause in Article II, Section Six. That part of the constitution currently reads as follows:

"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."

  The last sentence in the section is the critical one here. It prohibits cities and counties from passing their own firearms laws that would only apply within that city or county, thus ensuring uniform firearms laws all across the state of New Mexico and also ensuring that extremes of firearms laws are less likely to be created. Note that of course a city is able to ban the discharge of firearms for hunting or target shooting within populated places, but cannot independently ban or regulate possession of firearms or ammunition.

 So while a strongly pro-gun rural county cannot have more liberal gun laws than the state, a strongly anti-gun locality cannot write highly restrictive law either. Indeed, some on the Albuquerque City Council are chomping on the bit to, as Councilor Pat Davis states, ensure the state constitution is not "...“standing in the way of cities like Albuquerque and others of doing what’s reasonable..." The problem is, what's reasonable to Mr. Davis might not be reasonable to your or me and indeed, can vary from location to location depending on local politics. One might expect cities such as Santa Fe to also support such a move.

 In other states, the lack of preemption has resulted in situations where municipalities pass highly restrictive laws. For example, New York City does not honor the rest of the state's pistol permits and in fact, New York City puts huge hurdles in front of those wishing to own firearms of any sort, especially handguns.  Similar situations have cropped up in states such as Colorado (Boulder) and in Illinois.

 This is alarming for many reasons, a few of which I will mention briefly. One, the bar to amend the New Mexico Constitution is very low: a simple majority of both houses of the Legislature followed by a simple majority of the public. Two, if such an amendment passes (and indeed, the Legislature would be free to rewrite all of Article II Section Six if it so desired and put a new version to the voters), people in some parts of the state could suddenly find themselves becoming lawbreakers even if for their entire lives, they have been safe and law-abiding. You have a fifteen round magazine, a double stack pistol, or a military style rifle? Relinquish it or become a criminal. Or move, I suppose. Three, we are a very sparsely populated state with few major highways. If a city or county passes highly restrictive laws, will a safe passage clause be provided so that citizens can move between locations on our few highways in order to hunt or go to shooting matches? Four, will a municipality have the freedom to not recognize a state concealed carry permit?

We won't know the answers to any of these hypotheticals until they play out, should the constitution be amended. What we do know is that if it does pass, no two cities or counties may have the same laws. We will see confusion and see that some citizens will have fewer rights than others.

The Los Alamos Sportsman's Club and the NRA are following these developments. You should too.



Friday, June 19, 2020

Statues on the Move

With apologies to the late Gil Scott-Heron

and his song "Whitey on the Moon"


Santa Fe New Mexican Photo Credit to Matt Dahlseid
I keep thinking that its easier to tear down statues than solve real problems. The fact that these statues are still up rubs some raw and for historically good reasons, but there are other pressing problems that keep everybody down. Getting rid of statues won't open the economy, get the unemployment rate down, or lower the price of a house in the City Indifferent. But it will feel socially just.

Then I thought of Gil Scot Heron and realized that reality doesn't change, it just changes form. Hence my piss poor takeoff on Gil Scot-Heron's really cool song.


I lost my job to the covid
With statues on the move
The checkbook is getting awfully thin
With statues on the move

The landlord wants his rent today
With statues on the move
He said he’ll raise the rent any day
With statues on the move
I think he bought his thirteenth house
"investment property", they say
with statues on the move

But I can't afford a house today
With statues on the move
And my doctor locked his doors today
Because I can't afford the co-pay
With statues on the move

I wonder where I’ll get a job today
With statues on the move
Or why the NIMBYs cancelled that new rental place
With statues on the move
They say this is a progressive town
With statues on the move
But all I see is surface rage
With statues on the move

So here I sit all day today
Watchin the kids cause they can’t go to school
My wife is having a breakdown
And for me there is no job around
The car is low on gas
and the governor shut the bike shop down
I’m a nervous wreck but there’s no way out
And I wonder why all this big bad pout
Over a statue sitting in the middle of town
When my whole life is spinning down
Well, those statues are on the move

So I think I’ll write all these issues down
While I’m sittin here with this frown
Figuring out how to survive in an expensive town
Looking for some answers true
So I'll send my questions, return postage due
To this town's Mayor
c/o the office of Statues on the Move


And I did see Gil Scott-Heron perform at Stony Brook back in the 1980's. He did this song.